6 Vt. 680 | Vt. | 1831
The opinion of the court was delivered by
— The only question arising under the sixth plea, relates to a supposed variance in the name of the creditor, Williams. He is described as Silas Williams, Junior, in the original process and judgment, and as Silas Williams in the jail-bond and declaration. According to the weight of authority, the addition of younger, or Junior, is not to be regarded as any part of the name, but merely as a convenient mode of designation, depending on. temporary or local circumstances. We therefore decide, that the record produced sufficiently corresponds with the averments of the declaration.
If it be assumed that the matter set forth in the eighth plea constitutes a defence to the action, it is quite evident that the replication is not liable to the objection taken. The two prominent facts alleged in the plea are, that the creditors demanded an assignment of the bond on the 20th day of November, A. D. 1817; and that they discharged the plaintiff (agreeing to indemnify him from costs, &c.) on the 1st day of June, A. D. 1826. Each allegation was intended to show, that before the commencement of this suit, the creditors had become disabled to enforce any claim against the plaintiff: in the one case by the statute of limitations, and in the other by their own act. These averments are equally material in support of the plea, because the effect of each is the same. It was therefore required that each should be met by the replication. And ac-
We are not prepared, however, to admit the validity of the plea. As the discharge of the plaintiff is alleged, it does not import a satisfaction to the creditors for their debt, nor any release or assignment of it. It merely covers their collateral claim on the plaintiff, for what had already happened. They are not precluded from the benefit of any after proceedings for the collection of the debt. On the contrary, the discharge is set forth as part of an arrangement, by which the bond was to be enforced in the plaintiff’s name, for the benefit of the creditors. This may be regarded as an equitable assignment to the creditors, of the plaintiff’s remedy on the bond, but surely not as an act defeating that remedy. And although the statute of limitations might protect the plaintiff from any action by the creditors, founded on his refusal to assign the bond in A.D. 1817, it would be optional with him whether to avail himself of that defence. It is not readily seen that these defendants would be entitled, of course, to anticipate it in his behalf. However this might be, the collection of the original debt, by the present suit, would afford the creditors a new cause of action against the plaintiff. Most certainly he could not retain the money. The immunity of the officer, from all existing liability, has been strongly pressed upon the court without effect, in several cases analogous in principle to the-present, as the plea presents it; and especially in Hall vs. Walbridge, 2 Aikens. A further objection is apparent in the leading principle, of the plea. In effect, it is but a plea of non-damnificatus, which has been overruled in this and other similar cases. — 2 Vt. R. 174. It treats a jail-bond as a mere indemnity to the sheriff, when, in substance, it is also a security to the creditor for his debt.— As such, the sheriff is required by statute to assign it to the creditor, and on refusal to do so, might doubtles be compelled by a court of chancery, under proper circumstances, to prose-, cute it for the creditor’s benefit, or restrained from discharging it in fraud of the'creditor. It has been correctly said, that in general no defence will hold to an action in favor of the sheriff, which would not be available, were the bond assigned, and prosecuted in the name of the creditor. — 2 Vt. R. 517. And again, that to test the defence, it should be asked, whether, if the sheriff recovers, he could pocket the money.
Judgment of the county court affirmed.