Hoyt v. Smith

83 Vt. 412 | Vt. | 1910

Watson, J.

The defendant moved that the writ be quashed and the suit dismissed on the grounds,-simplified, (1) that the writ was signed at the City of Barre, in the County of Washington, by a justice of the peace, and made returnable to the county court in Caledonia County; (2) that the recognizance in the writ was given at said City of Barre before said justice of the peace, he having no authority there to act. Before hearing upon this motion the plaintiff moved to amend the writ according to the fact so to read, “Dated at Groton, in the County of Caledonia,” averring that it was there signed by a justice of the peace of that county.

“Upon consideration of the court,” the latter motion was granted and the plaintiff allowed to amend his writ. The motion to dismiss was then overruled, to which defendant excepted.

The defect was one of form, — see Huntley v. Henry, 37 Vt. 165, — and if on hearing the motion to amend it was found that the writ was in fact issued as set forth in the motion, it was within the power of the court to grant an amendment accordingly. P. S. 1498. With such amendment made the writ shows security given to the defendant, by way of recognizance, as the law requires.

The record does not in terms state that it was so found; yet in effect it so shows, for the words “upon consideration” are construed as meaning upon due consideration, nothing appearing to the contrary, which means as here used consideration in proper course of procedure. It follows that the motion to dismiss was properly overruled.

Judgment affirmed and cause remanded.