Weed v. Abbott

51 Vt. 609 | Vt. | 1879

The opinion of the court was delivered by

Ross, J.

The defendant by oyer having brought the bond and its condition upon the record, the question raised by the demurrer is, whether the bond and its condition show a legal commitment of John M. Little to the jail in Caledonia County, so that the defendant is liable as surety on the bond for the escape or departure of Little from the limits of the jail yard. The conditions of the bond must show a legal commitment of Little, in order that the plaintiff may hold Abbott liable as surety on the bond for his escape or departure from the limits of the jail yard.

The condition of the bond states that said- Little was committed on an execution in favor of the plaintiff against said Little, issued on a judgment recovered before Henry W. Adams, a justice of the peace for the County of Orange, and signed by the said J. D. Abbott, Justice of the Peace. It is claimed by the plaintiff that the insertion of the name of J. D. Abbott is clearly a clerical error, and that from the condition itself it is perfectly apparent that it is so, and that it was the manifest intention of the parties to the bond to have inserted in its stead, Henry W. Adams, and that it is the duty of the court to construe the condition of the bond in this respect as though it read, “ and signed by the said Henry W. Adams, Justice of the Peace.” In the language of Pierpoint, C. J., in Wood v. Cochrane, 39 Vt. 544, “ The principle is well settled in this State and elsewhere, that when it is perfectly apparent upon the face of a written instrument that a mere clerical error has been made, and when it is apparent from the face of the instrument what the correction should be to make the .instrument what it would have been if the error had not occurred, courts will correct such error by construction, that is, they will treat the instrument the same, and give it the same legal effect and operation, as though the error had not been made.” The court in that case were asked to construe the certificate of acknowledgment attached to a deed in which the grantee’s name was inserted, as though the grantor’s name had been inserted therein. The form of the acknowledgment was, “ then the above named S. P. W. acknowledged the above instrument to be his free act and deed.” The court held that this was an instrument complete and perfect in itself, and that it did not contain enough to make it perfectly apparent that the insertion of the grantee’s name was a clerical error, and, if so, it did not on its face show that the name of the grantor was intended to have been inserted instead of that of the grantee, but the court said that if the form of the acknowledgment had been that usually used in this State, viz: “ S. P. W.[ the grantee,] the signer and sealer of the foregoing instrument, &c., or the person known to me as the signer,” the principle would have applied. We cite this case as containing a clear statement of the principle which governs this class of cases, as well as illustrating where the principle does and where it does not apply. In the case at bar, we think it is perfectly apparent that the insertion of J. D. Abbott was a clerical error. His name had not before been mentioned except as surety in the bond. It is not before used in the condition of the bond. Nowhere before is he said to be a justice of the peace. It is apparent that the writer of the condition, after having stated the parties to the execution, the amounts for which it issued, and that it issued on a judgment recovered before Henry W. Adams, a justice of the peace for the County of Orange, intended to have said it was signed by said justice of the peace, Henry W. Adams. No other justice of the peace could issue an execution on the judgment, or would be likely to know the amount of damages and costs. The use of the word “ said ” before the name, and in connection with the descriptio personae, justice of the peace, together with what immediately precedes, renders the error and correction both apparent, and brings the case within the principle stated in Wood v. Oochrane, and as illustrated in Richmond v. Woodard, 32 Vt. 833. The latter case is quite similar in some of its features to the case at bar.

The pro forma judgment of the County Court is reversed, and judgment rendered for the plaintiff for the sums stated in the condition to the bond.