4 Vt. 215 | Vt. | 1832
pronounced the opinion of the Court.The plea of the statute of limitations, to which the plaintiff demurred, was overruled by the county court. The demand appeared to have lain sufficiently long to be barred, if comprised within the statute. But we consider the statute barring civil actions, applicable only to suits between individuals. The state is not named as being bound by it. The sections, which provide a bar to prosecutions for crimes, are made to bar the state, because the state is prosecutor. Certain qui tarn actions are barred by the first section of the statute, when sued by a common informer, to a given period ; and a longer time is given to the state, when no person appears to prosecute. This is all plain; and it appears reasonable to conclude, that the law makers, thus definite in so many cases, did no.tjntend to include the state and bar their rights, in eases not named at all; especially, wjhen it must have been
There having been a demurrer to this plea of the statute of limitations, the defendant’s counsel have gone back to the declaration, and urged several objections to its validity. 1st. That the law making power is therein termed, the legislature. This term is frequently used in common parlance, and once, if not more, in the constitution, to designate that body. We think this no good objection to the declaration. 2nd. The declaration sets forth an extent against Holmes for two distinct delinquencies, occurring in two different years. This objection is fortified by presenting the difficulties that would arise in casting the burthen upon the right persons among Holmes’ bail, bad the remedy been sought of them in any event. This, it is urged, rendered the extent against Holmes void, and his imprisonment illegal. But we find, on inspection of the declaration, that it describes the sum due from each constable with such particularity, that no more difficulty could arise, in the apportionment among bail, than if a suit were brought with two counts, in which the sheriff ought to be made good by different deputies. The true sum could be assertained as easily as in any other cases of apportionment. 3rd. It is objected, that the declaration does not allege, that the extent was signed. This is not inserted with entire particularity. The averment is, that the treasurer, on such a day,&tc., “ issued his extent in due form of law, dated,&c.” This is not sufficiently defective to be adjudged bad, unless on special demurrer. The defendant’s fourth objection to the declaration is, that it describes the extent against Holmes as having been directed and delivered to the defendant, as sheriff, when, by the statute, it ought to have been directed to the high bailiff, and delivered to him to serve. It is contended, that a precept, thus misdirected, gave the defendant no authority to hold Holmes a prisoner. The general statutes provide, that all precepts shall be directed to the sheriff or his deputy, &tc.; and wherever the sheriff is interested, or is a party to the suit, the precept shall be directed to the high bailiff. And, when the sheriffshall be in prison the high bailiff shall be keeper of the prison. The statute, regulating the treasury department, directs the treasurer to issue his extents against constables, and direct and deliver them to the sheriff ; and, when the sheriff has committed a neglect, and an extent issues against him, the treasurer shall direct and deliver that extent to the high bailiff; and fixes a penalty upon the high bailiff if he neglects his duty in the
There yet remains a question, raised on the exception to the’ exclusion of evidence, offered by the defendant, to show the poverty of Holmes when he escaped. We consider the statute, giving this privilege to the sheriff, applies only to individual suitors, and not to the state. All the provisions for the privilege of the poor debtor’s oath ; the notice to the creditor, or his attorney, if living within the county; the necessity of the creditor’s appointing an agent in the county when he resides out of it; the legislature’s making a separate provision for debtors to the state ; these all indicate, that the provisions, now claimed under the statute, were-not intended to affect the state ; that the state was not thought of at all in this enactment. But this right of showing the poverty of the prisoner is a common law right. The state or any other suit- or, bringing an action upon the case, complains of an injury, arid-claims reasonable damages. And the defendant, in all such actions, has a right to prove what will convince, that the plaintiff has sustained less damages than he asks for. In the present case,, the plaintiff demands the whole sum, for which Holmes was imprisoned ; because he could not have been liberated from his imprisonment until he paid it. This hold upon him is lost by the-
A new trial is granted.