12 Vt. 499 | Vt. | 1837
The opinion of the court was delivered by
his is an action of account, wherein the defendant is charged as bailiff and receiver of certain wares and
The next question arises on a plea in .abatement, and an order of the county court permitting an amendment. The writ was served by the sheriff of Orleans county, when it was directed only to the sheriff of Orange. This matter having been pleaded in abatement, the court permitted an amendment of the writ, by inserting a direction to the officer who made the service. We are inclined to sustain the amendment, so far as to prevengan abatement of the suit, without deciding on its effect in legalizing the doings of the officer for collateral purposes. To this extent we have the repeated decisions in Massachusetts, and, for the reasons on which these authorities proceed, we are disposed to adopt the rule which they have established. 9 Mass; R. 95. id. 217. lido. 276. '
The remaining question arose on the trial of the issue preparatory to the judgment to account. It was insisted by the defendant, who had pleaded that he was never bailiff, fyc, that the plaintiffs were bound to prove a demand upon him, before action brought, to render an account; and that the evidence, offered for that purpose, was illegal and insufficient. On the last point we are clearly of opinion with the defendant. It does not appear that the messenger of the plaintiffs, who made the supposed demand, had authority to settle, or even to receive, the defendant’s account. His only business was, to exact payment of a specified sum claimed by the plaintiffs. But the important enquiry is, whether, upon the trial of that issue, the plaintiffs were bound to show a demand. It is contended they were, because a request or demand is alleged in the declaration, and was necessary to perfect the cause of action; also because the plea was the appropriate general issue in the case, and therefore put the plaintiffs on proof of their whole declaration. We think that a demand, or something tantamount to it, was necessary to perfect the cause of action. But we are not satisfied, although a demand is alleged in the
Judgment of county court affirmed..