McGregor v. Balch

17 Vt. 562 | Vt. | 1845

The opinion of the court was delivered by

Redfielb, J.

1. It is urged that the non-joinder of all the parties to the recognizance, in this case, is a fatal variance, which might be taken advantage of, upon trial, upon the plea of nul tiel record. But we think not. The rule and the reason for it seem to us to be the same, whether the declaration be upon a contract of record, or upon any other written contract, — as for example, a bill, note, or bond. And in all these cases it is well settled that the omission of a joint contractor can only be taken advantage of by plea in abatement, unless such omission appear upon the record, that is, the record of the very suit upon trial; and in that case it may be taken advantage of by demurrer, motion in arrest of judgment, or writ of error. 1 Chit. PI. 32. And in the present case, if the defendants had craved oyer of the record declared upon, and, after setting it out, had demurred, the defect complained of, appearing of record, must have been fatal. It is said, in some of the books, that it must appear of record, that the joint contractor omitted is still living, in order to take advantage of the non-joinder by demurrer, &c.; but this, I apprehend, is to be presumed, for at least seven years, unless the contrary appear.

2. The variance of the record from the declaration, in the name of one of the defendants, would once, doubtless, have been held fatal. But when there is no controversy but that Barney, Barna. and Barnabas are used for the same name, — as are Benja., Ben., Benje and Benjamin, — and it appears that the objection has not been started, until the final argument in this court, — showing that this defendant is known and called by the name of Barney, as well as Barnabas, — the court would consider the defeating of the suit, upon so trivial an objection, as savoring more of minute criticism, than either of wisdom, or justice.

3. It is urged, that the record of the recognizance is so defective in form, that it should have been held void. It is not pretended that it contains more than the statute obligation, — which would make it void, — -but that it contains so much less, that the court cannot say that the conusors intended to assume the statute obligation. This is certainly necessary, in order to make the contract binding. We do not understand, that, in the present case, there is a want of a formal record, as was the case in Story v. Kimball, 6 Vt. 344; but the form of the record is here defective. But we think not fatally so. No particular form of words is requisite, in order to the validity of a record. It should appear from the record, or from reasonable intendment, that the defendants entered- into the statute recognizance to prosecute the appeal. The obligation of every such recognizance is conditional; — so that^ is implied. The law fixes the nature and extent of the condition; — so that may be as well expressed as it is here, as to be written out in the form of the statute then in force, of which the court will take judicial notice.

We cannot and ought not to disregard the consideration of the nature of justice courts, the great number of them, the extent of their jurisdiction, and the fact that most of them are holden by men not 'professionally educated. If their records express, in general terms, the nature of their judgments, and their recognizances are so1 expressed as to enable this court, on the most favorable construction, to comprehend the nature and extent of the obligation intended to be assumed by the conusors, we should not be acting a reasonable part to require more. Upon this- rule of construction there is no difficulty in supporting the present recognizance. For the names of the conusors, the sum in which they are bound and that they are jointly and severally bound does appear upon the record, and that it was “ for the prosecution of the appeal in due form of law.” This implies, that, in case of failure, they are to pay all intervening damages and additional costs. The law imposes this specific condition, and it is as well, perhaps, to express it, “ in due form of law,” as to write out the terms of the contract.

4. The rule of damages laid down by the county court was correct. “ Intervening damages ” are such as will make the party as well off, as if no appeal had been taken. This can only be determined by looking at the appellant’s property from the time of the appeal until the final judgment; and it is, as was said by the court in Rogers v. Judd, 5 Vt. 236, the value of the plaintiff’s “chance” of collecting his debt during the suspension of his execution, which he has lost by the appeal, and which he is entitled to recover by way of damages. What was said to the jury, as to the mode of estimating this chance, was not necessary, — for that rested exclusively with the jury, and might have been left with them without comment. We do not now perceive, however, any way, in which what was said upon this point could have misled the jury, or that it was not, in fact, just and reasonable; but it pertained, doubtless, more to the province of the jury, than any matter of law, and was well enough, if the jury did not except to it; and if they did, they were at liberty to disregard it.

Judgment affirmed.