Hine v. Pomeroy

| Vt. | Jan 15, 1867

The opinion of the court was delivered by

Barrett, J.

The question before the jury was whether, when the writ of the plaintiff v. Nichols was delivered to sheriff Taylor to be served, Chittenden, the plaintiff’s attorney, directed Taylor to take the receipt named in the exceptions, and not remove the property.

I. On that question the defendants took the burden and the affirmative, and went forward. They gave in evidence Taylor’s deposition, in which he testified directly and unequivocally that Chittenden did give such direction, and that he took the receipt in pursuance of it. Chittenden was then introduced as a witness by the plaintiff, and testified that he did not give such direction. It was proposed to have him further testify “ that his uniform habit and course of business as an attorney, before and at the time of issuing said writ, in the case of delivering notes of attachment to officers for service was, not to give instruction to such officers to take receiptors, or as to whom they should take as receiptors, but to abstain from giving sueh instructions in respect thereto.” He had already testified that at that time “ he was, and for years before and after, had been and was an attorney at law, in practice in Burlington, doing a large business.” It is conceded in the argument that it would have been proper, or not objectionable, for Chittenden to have added to his denial that he gave such direction, as a kind of supplement, by way of indicating the confidence with which he made such denial, what it was proposed as a distinct offer, to have him testify. To the same end and intent it seems to the court -that he should have been permitted to testify as proposed. There was a conflict between himself and Taylor ; he testifying that he did not against Taylor testifying that he did. In such cases it is commonly claimed that the testimony of him who testifies affirmatively that an act was done, or an event happened, (other things being equal,) is less like to be erroneous, and is more reliable than the testimony of him who testifies that such act was not done or such an event did not happen. Ordinarily it is said, and justly, that he who testifies to the negative may have forgotten a fact that actually took place, while he who testifies affirmatively cannot remember a fact that never did take place ; and so, upon common principles affecting or governing the credit and weight to be given to testimony thus in conflict, it should rather be held that the one had forgotten than that the other had testified falsely. It seems proper, as grounded in sound .principle, and sanctioned by long usage, that such affirmative facts and circumstances as are connected with, or kindred to, the fact in controversy, and so related to it as to affect the conduct or the memory of the witness as to the main fact, may be testified to by him, as bearing upon the likelihood of his not haw ing forgotten, nor testified mistakenly as to the main fact. It is conceded, and many books are cited which show, that evidence of the character offered in this case only as corroborative, has been received as pertinent and adequate of itself to prove a material fact,— as in the case of subscribing witnesses who have forgotten about having witnessed the execution of a paper in question, — as in the case of notices of presentment, protest and the like, when the witness has no recollection of the fact, but testifies to his uniform habit and course of business in that respect, and to his belief grounded upon it, and thus proves the material fact about which he has no active memory. If such testimony is proper and adequate to prove a material fact, it would seem' strange if it should be held not proper as corroborative of the correctness of the witness who swears by his memory as to the main and material fact.

II. Chittenden had testified that he did not give such direction to Taylor as the defendants claimed and gave evidence to prove that he did. Nichols, for the defendants, testified that, a short time after the service of the plaintiff’s writ, Chittenden told him that the plaintiff had told him (Chittenden,) to direct Taylor to take Macomber as receiptor. The plaintiff claimed that that testimony of Nichols had no bearing upon the case, either to prove the direction claimed to have been given by Chittenden, or as tending to impeach him. The court permitted. it to be considered by the jury as tending to impeach him. In this we think there was error. Impeachment by contradiction requires that there should be a contradiction. To say nothing of the somewhat irregular manner in which this testimony was put into the case, we think, if Chittenden had been asked by counsel for the defendants if he did not tell Nichols that he directed Taylor to take Macomber as receiptor upon an occasion named, and he had denied doing so, it would not have been competent, for the purpose of impeaching him by contradiction, to show that he said what Nichols testified he did say ; and if the distinct offer to prove it by Nichols had been made, it would have been the duty of the court to exclude it, and for the very obvious reason that, while Chittenden would have been asked and testified that he did not do or say one thing, the offer would have been to prove that he did say another and a different thing. This would not be contradiction that works impeachment} and it was only in this view that the evidence given by Nichols was put to the jury. "We think the jury should have been instructed as requested on this subject. On these points, for the reasons thus given, the judgment is to be reversed. The other points made upon the exceptions in the argument we regard as properly ruled, so far as they remain material under the decision now made upon the two points above discussed.

III. The question mainly debated and presented to the court for decision does not seem to be raised by any point taken upon the trial in the county court, and still it is one that seems to be material and fundamental, .and that it is, whether, upon the facts set forth, if proved, the plaintiff would be entitled to recover. In the present posture of the case, and as the question has been fully argued, we volunteer a decision of this point.

Under the statute in force at the time Taylor became sheriff, and so forward till the General Statutes took effect in August, 1863, this process of scire facias upon the recognizance of the sheriff and his bail could not be maintained for the official defaults of the sheriff, unless the party seeking remedy against the bail, had first pursued the sheriff to final judgment for such default. The act of 1860, enabling suit to be brought against the bail without such judgment having been first obtained against the sheriff, was, by a proviso, restrained from applying “ to any cause of action already accrued, or any misconduct, neglect or default of any sheriff, or high bailiff then existing.” In the General Statutes, chapter 30, section 73, the act of 1860, was incorporated, except that said proviso was omitted. So that, by the terms of said section 73, in the cases therein named, suits might be brought against the bail without regard to the time when the cause of action accrued, or the misconduct, neglect, or default of the sheriff happened.

It is claimed for the defendants that the statute, (Comp. Stat. ch. 28, § 56,) which was in force during the official life and services of said Taylor, requiring judgment to be recovered against the sheriff before resort could be had to his bail, was not in such a sense merely providing a remedy, as to fall within the constitutional right "of the legislature to alter and thereby dispense with any of the requirements of that statute, as to the steps therein provided, in order to enable suit to be brought against the bail of the sheriff; in other words, that it stood in such a relation to the subject, that its provisions should be regarded as affecting the contract of recognizance, and so cannot be altered in such way as to impair the immunity thereby accorded to the sureties of the sheriff. In the judgment of the court that section of the statute appertained only to the remedy, and not to the contract. Compiled Statutes, chapter 13, section 2, prescribed the contract, and the purpose and ground of the liability to be incurred thereby. The condition of the recognizance prescribes in what event liability shall be avoided, and clear provisions and principles of existing law furnish the rule for measuring its extent when liability is incurred under it. The condition is, that the sheriff “ shall well and faithfully discharge all the duties of his office as such sheriff.” There is no other condition expressed or implied in the contract, or in the statute requiring .such recognizance to be given. In order to give the contract the character and effect claimed, the condition must be construed to be, “ that the sheriff should well and faithfully discharge the duties of his office in all cases in which judgment shall be recovered against him for not doing so.”

In the next place, the statute, ( Comp. Stat.) chapter 28, from section 50 to 59, inclusive, professes only to provide for ‘proceedings in actions on penal bonds.” “ Proceedings in actions” imply, by the terms, mere remedy for enforcing an already perfected liability. In view of the provisions and purposes of the statute requiring the recognizance to be given, and providing for the proceedings in actions thereon, instead of holding that the defendants were entitled to regard their contract as incorporating into itself the provisions of section 56 of chapter 28, Compiled Statutes, we feel compelled to hold that they were bound to regard said section as applying only to matter of remedy, and their contract subject to said remedy, as the legislature from time to time might provide, in case it should not undertake to extend their liability beyond defaults of the sheriff by not well and faithfully executing the duties of his office.

It is conceded, as it may well be, in view of the law as adjudged in ibis state, that a statute providing, or merely affecting the remedy, may apply to, and operate upon, causes of action that had accrued and were existing at the time of the enactment of such statute, as well as causes of action thereafter to accrue. Whether it should he held to apply to both, or only to the latter, is to be determined by the court, having regard to the terms and provisions thereof, and to its history, purposes and reasons. The legislature finds its legitimate sphere in the enactment of laws. When enacted, it is the province of the courts to administer them by interpreting and declaring their meaning and force, and by applying and giving them effect in cases as they arise.

Section 73, chapter 30 of the General Statutes is not by its provisions limited in its operation with reference to the time when the causes of action, to which it might be applicable, accrued. Hence, standing upon its terms, there is nothing to exclude from its operation causes of action that had accrued and were existing at the time it became operative. Ordinarily statutes are held to operate prospectively and not retrospectively, unless it appears that they were designed to have the latter operation. When it is sought to have such operation given to a statute to the impairment of an existing right, or the infliction of a wrong, established and familiar principles would require the courts effectually to interpose and prevent such results.

When, without such consequences, the intention is apparent that the law should have such operation, such intention would prevail. Again, if such intention was not manifested by the form and language of the enactment, still if the just results would constitute a reason for giving it such operation, and it was not restrained in this respect by some provision of it, such reason would be permitted to operate, and the act to have such effect.

There being in the present case nothing in the language, or provisions of section 73, indicating an intention to restrain it from operating upon all existing causes of action, does reason exist for permitting it to act retrospectively in this case ? Holding, as we do, that it has sole reference to the remedy, its purpose is manifest to enlarge the remedy theretofore existing, without impairing any right or incurring any liability springing from the contract itself. We think,, too, such enlargement of remedy was judicious, and was only enabling parties, for whose- immunity the recognizance was required, more adequately and justly to avail themselves of the obligation assumed by the recognizance and its condition.

In the next place, the intention of the legislature that enacted the law to have it operate on all existing or future causes of action, is indicated by the fact that while it re-enacts the affirmative part of the Act of 1860, it omits' the restrictive proviso; and still more, it contains a provision that was not in the act of 1860, by which sureties in sueh bonds may be able to defend themselves against any unfounded or illegal claim asserted under and by virtue of said recognizance.

We think, therefore, that in accordance with the spirit and language of the judgments and text books that have been brought to notice in the argument, and in contravention of none of them, it should be held that said section 73 embraced and was operative upon all causes of action, whether existing at the time it took effect or accruing thereafter, and that it so continued until the enactment of 1865, by which its operation was limited to causes of action arising subsequently to the second day of November, 1860. That act was virtually a repeal of said section 73 as to causes of action that accrued prior to the- time named in it. It left such causes of action, including this suit, standing precisely the same as if said section had been entirely repealed, and the law had been reinstated as it stood in the Compiled Statutes, at the time the recognizance in question was entered into. It is therefore claimed that this suit, which was brought after the General Statutes went into operation, and before said act of 1865 was passed, must fail.

Section 19, chapter 4, of the General Statutes, which is in substance, the act of 1851, was designed to reach and save suits from being sacrificed by a change of the law in operation at the time, and in pursuance, and by the force of which they had been brought, and were pending when such change should be made. Though the expression in that section is, “ the repeal of such ■ statute- hereafter shall not operate to defeat such action,” it seems very plain that it was not designed to be limited to eases of formal repeal in literal terms, but that it was designed to be efficacious to save suits depending on statutory provisions, where, after the bringing of the suits, the provisions on which they depended had ceased to be operative by reason of other enactments..

Upon this construction and application of said section 19, of chapter 4, of the General Statutes, the case of Pratt v. Jones, 25 Vt. 303" court="Vt." date_filed="1853-03-15" href="https://app.midpage.ai/document/pratt-v-jones-6575003?utm_source=webapp" opinion_id="6575003">25 Vt. 303, gives full warrant for holding that the present case so depends upon the provisions of statute as to constitute one of the class of suits embraced by that section. This being so, it is needless to pursue the discussion in reference to any of the other views presented in the argument.

For the purposes designed by bringing into discussion the plaintiff ’s right to maintain this suit upon the facts stated in the declaration, and which his evidence tended to prove, we cannot assume to decide as matter of law, that the plaintiff was, or should be, precluded from maintaining it, by the fact that Taylor did not leave the state till some four months after he had made default for which the plaintiff claims to recover.

The judgment is reversed and the case remanded to the county court.