16 Vt. 658 | Vt. | 1844
The principal question in the case arises on the defendants’ plea of non damnificatus. Upon this plea, and not upon the assignment of breaches, the parties have taken issue.
To see whether the plaintiff had been damnified, it is necessary to see what were his liabilities, aside from those imposed upon him by the ties of nature and consanguinity. By the plaintiff’s bond of July 11, 1821, he was bound to support his father and mother during their natural lives, — and, at the time of making the bond declared on, this bond was treated by the parties as an outstanding and subsisting liability against frhé plaintiff. By the bond declared on, the defendants assumed two distinct liabilities. One for the support of the plaintiff’s mother, independently of what had before taken place, and the other to save the plaintiff harmless from his bond to his father for the same purpose.
The question that has been raised is, whether, in legal contemplation, the plaintiff could be said to be damnified, until he had been coerced in some way to support his mother. So far as any facts are to operate upon the question, they have been found by the county court. And in relation to the main question, the plaintiff was not bonnd to wait for a suit to be commenced against him on his bond, nor for the town to institute proceedings against him, to compel him to furnish a support for his mother. He was under subsisting liabilities in both these respects.' We are not to presume that the court, in rendering judgment upon this issue, put an unreasonable construction upon the facts, or upon the defendants’ liability.
The case finds that the plaintiff proved the amount of his expenditures, — and we are not to presume that this refers to expenditures voluntary on the part of the plaintiff, and such as his mother stood in no need of, nor such as Alanson Seaver was furnishing her. If such were the fact, the defendants would have seen to it, that a case was made up, presenting such a state of facts. But we are warranted in rejecting such a conclusion from the case as it is. The plaintiff would not be at liberty .to furnish support for his mother at the expense of the said Alanson, unless t'he said Alanson neglected to do it himself. But, under the plea of non damnificatus, the court found the fact that the plaintiff furnished support for his
But the . defendants insisted that the original bond from the plaintiff to his father had been given up and cancelled, and that the plaintiff, therefore, was not liable at any rate upon that. It is a sufficient answer to that, to say that the parties, at the time of making the bond declared on, treated this as an outstanding liability, — and this was two years after the death of Daniel Seaver, the plaintiff’s father.
It is farther insisted that at least the sureties of Alanson Seaver ought not to be held liable for those expenditures, unless they were such as the plaintiff was compelled, by legal process, to furnish. But there is no distinction, in this respect, between the principal and the sureties. Alanson Seaver had engaged to do certain things ; and for not doing them he was liablel The sureties engaged that he should do them, and for his not doing them they became liable. So that the same act, or neglect, that charges the principal, must charge the sureties. And the question returns to its starting place, and that is the liability of the said Alanson. Alanson Seaver, the principal, stands as guarantor of the plaintiff upon the first bond, and engages to do whatever the plaintiff, by that bond, was bound to do, and when Alanson failed to do that which he had thus engaged to do; the plaintiff might then proceed and discharge himself from liability upon his bond, and look to the defendants upon their bond.
But, aside from this view of the case, there is a difficulty in sustaining the defendants’ position.
The defendants, instead of pleading to the plaintiff’s assignment of breaches, pleaded generally non damnificatus, — and upon this plea issue was joined to the court, and the court, as matter of fact, have negatived the defendants’ plea, and found that the plaintiff has been damnified. The case presents no question that was raised in regard to the proof under that plea, and no exceptions were taken to any ruling of the court, or any decision in relation to a question of law, under that issue. We must therefore take it for granted, after the finding of the court, that the plaintiff was damnified, and .that the fact was proved by competent and sufficient testimony.
The case finds that the plaintiff proved his expenditures, but this
The same may be said in relation to the question whether the plaintiff’s bond, given to his father, had been cancelled. That was a question of fact, and the court have determined it.
Judgment affirmed.
