Graham v. Todd

9 Vt. 166 | Vt. | 1837

The opinion of the Court was delivered by

Collamek, J.

The statute provides, “ that the ordinary “ mode of process^ in civil causes, in the several county courts, “ and supreme court of judicature, within this State, shall be “ by writ of summons or attachment, and according to the form “ prescribed by law. And every such writ or other process, re- “ turnable to any county court, within this State, shall be signed “ by a judge or clerk of the county court, in which the “ cause is to be tried, or a justice of the peace of the same coun- “ ty. To this provision there are no escpress exceptions whatever.

It is, however, insisted that a justice, who is in interest, cannot sign the writ, because the act defining the power of justices, in the 23d Section, provides that no one, “ who shall be directly or indirectly interested” — “ shall take cognizance of any cause.” Most' obviously, however, the issuing of process, returnable to another court, is not taking cognizance of the cause. That statute relates entirely to trying causes and rendering judgments, including confession judgments.

It is next insisted that this statute, which permits any justice of the county to sign the writ, must be taken with exceptions, though none are expressed, of which the present should be one, because the signing of a writ of attachment includes taking a recognizance to the defendant to secure costs, which is a judicial act, and which one cannot exercise in his own behalf. He undoubtedly may do it by express law. If the writ were a summons, originally, no recognizance was necessary, and the statute expressly gives the same power to sign an attachment as a summons. And when the law recently provided for a recognizance in the case of summons, it did not change the power of signature. If the signing justice were interested with the defendant, he could never have an interest to enter an improper or fictitious recognizance. If interested with the plaintiff, he would be bound to contribute to the defendant’s costs, and to indemnify the bail. The legislature could, therefore, grant the exercise of this power to such a justice without hazard of abuse.

The principal argument, addressed to us, is based on the effects and consequences. It is Insisted, that to permit the justice to sign an attachment, and take a recognizance, where he is in interest,would enable him, and that he would be interested to do so, to enter such recognizance falsely. This can hardly be supposed, as already shown. But in considering consequences, let us consider some of the effects, and consequences, and practical inconveniences of adopting the exception insisted on by the defendant. Pleas in abatement would be filed, and trials thereon would be had for many supposed interests, which the signing magistrate might be supposed to have, F or any pecuniary interest, however remote, would be fatal. It would prevent the clerk from signing 'his own writs; for his taking a recognizance, in such case, is not the act of the court. By^tlie present law, a justice may-sign a writ, returnable to the county court, to be served in any county in the State. Blank signatures may be, and are, extensively used, and the plaintiffs and their attorneys cannot know all the possible interests in relation to the demand, which the justices may have contracted, and if the signing magistrate’s or clerk’s blank signature happened to be used,when they had some such covert interest, or were members of the town, bank, or other corporation, which was a party, a plea, in abatement could and would be interposed. When consequences, so inconvenient on the one side, are met by little or none on the other, we should be slow to adopt the exception claimed by the defendant.

It is a general rule of construction, that where exceptions are expressed in a statute, none others can be implied. It is observable, that in many cases, where power is granted to justices by our statute, it is expressly forbidden to be exercised by those in interest; as in trial of cases; also, where another justice is called to continue a cause in the absence of a sitting justice; also, in the case of appointing appraisers of land on execution. In this case of signing writs, the legislature has expressed no such exceptions, nor is the court convinced they intended so to do, nor do we feel either authorized or inclined to engraft such an exception upon the statute.

Judgment Affirmed.