19 Vt. 23 | Vt. | 1846
The opinion of the court was delivered by
It is clear, that a fictitious indorsement, like the one in question, could be of no avail to the creditor, if designed to affect the operation of the statute of limitations, or, indeed, to defeat or abridge any valuable right of the debtor. The question, therefore, is, whether any such right of the defendant was infringed by this act of the plaintiff. The apparent effect was to ease and benefit the defendant, by remitting a portion of his debt. In cases of uncertain damages, as trespass and many others, the plaintiff, though entitled, from the extent of his injury, to commence his action before the county court, may yet sue before a justice of the peace, by limiting his ad damnum to one hundred dollars, or less. And, as said by Redfield, J., in Perkins v. Rich, 12 Vt. 595, “this can never do injustice to the defendant, as it is only a privilege to reduce a claim for damages.” It is true, that in actions on promissory notes the ad damnum is not a test of jurisdiction; for that is made to depend upon “ the amount of the note, deducting indorsements.” Rev. St. c. 26, §.8. But in an analogy to the rule established in the other cases alluded to, it would seem, that a party may as properly reduce his claim for damages in cases of this class, as in those; and that in
It is urged, however, that such an indorsement is not binding on the party making it, but that he is at liberty to expunge or disregard it, and enforce collection of his demand, as if the indorsement had not been made. But should this be conceded, it does not appear to affect the point of analogy before noticed. For the indorsement is made binding upon the plaintiff by statute, for all the purposes of the action, whilst pending as a justice suit, as it certainly would be, after final judgment recovered; and if he could avoid the effect of it by nonsuit, or discontinuance, and thus enable himself to commence a county court action, he could do the same in the other cases referred to.
That an indorsement, in order to change jurisdiction from the county court to a justice of the peace, need not be predicated upon a payment properly applicable to the note, on which it is endorsed, was decided in Boutwell v. Mason et al., 12 Vt. 608. Hence it only remains to be determined, whether this effect must be denied to the indorsement, when it is not founded upon actual or supposed payment, but is made for the mere purpose of thus changing jurisdiction. And since we do not perceive that such an act can justly be regarded as fraudulent, or injurious towards the debtor, neither do we think it is rendered inoperative by any necessary construction of the statute.
Judgment of county court reversed, and cause remanded to that court for farther proceedings.