Foot v. Tewksbury

• Decision Date: 01 January 1829
• Citation: 2 Vt. 97
• Parties: JOHN and NELSON FOOT v. PHILIP TEWKSBURY
• Court: Vermont Supreme Court

2 Vt. 97

JOHN and NELSON FOOT v. PHILIP TEWKSBURY

Supreme Court of Vermont, Addison

January, 1829

This was an Audita Querela, stating a judgment recovered by the defendant, against the complainants, before a Justice of the Peace, in an action for an assault and battery; an appeal from that judgment, and a settlement by the mutual agreement of the parties, each agreeing to abandon the suit, and neither paying any thing to the other; and that Tewksbury afterwards procured an affirmance of the judgment in the County Court, and obtained execution, & c. and praying that both judgment and execution might be set aside, and holden for nought. On trial in the County Court, upon this complaint, a verdict was returned against Tewksbury. Exceptions were taken to the decision and charge of the County Court on said trial, and a case agreed on by the parties was brought to this Court for adjudication. By the case the following facts appear: The plaintiffs, on the trial of the Audita Querela, in the County Court, proved that after the rendition of the judgment by the Justice of the Peace, and before the session of the Court to which the same was appealed, the said suit was settled by the parties, and that Tewksbury agreed that the same should not be entered in Court, or further prosecuted--no money being paid by either party, but both agreeing to abandon the action, and that each should pay his own costs. The defendant then offered to show that, after the rendition of said judgment before the Justice, and before the said supposed settlement, the attorneys for Tewksbury, who commenced the suit before the Justice, gave the (then) defendants notice, that they had a lien upon the judgment, rendered by said Justice in favor of defendant, for their costs, and that they must not pay the same to Tewksbury. But the Court decided the testimony was inadmissible. The defendant then offered evidence tending to show, that, at the time of said supposed settlement, he was intoxicated. The counsel for the defendant, requested the Court to charge the jury, that if, at the time of said supposed settlement, the defendant was, by intoxication deprived of his ordinary judgment and capacity to contract the said agreement of settlement would not be binding. But the Court charged the jury, that if Tewksbury was intoxicated at the time of said agreement to settle, so that he had not the same capacity to contract that he would have if sober still, if he was not so drunk as not to know the consequences of his agreement to settle, he would be bound by such agreement.

Affirmed.

Argument in support of the exceptions.--With regard to the first point, it is insisted, that the attornies, who commenced the suit and prosecuted it to judgment, acquired a lien for their costs, which the Court will protect. The English doctrine of protecting the attornies' lien was fully established in Heartt v. Bates and Chipman, 2 Aiken, 162. It can make no difference that the suit was commenced before, and the judgment rendered by, a Justice of the Peace. For as the doctrine of liens is founded on the equitable right that the attorney, by his services and advances of monies, acquires in the judgment, it is entitled to the same protection in a suit before a Justice as in a suit in the County Court; and, in the case in question, this Court had appellate jurisdiction. Nor can it be material that the judgment was not final. For in a suit commenced in this Court, after judgment, though the case be open to review, the attornies' lien will be protected. That nothing was paid, does not vary the case. For, although he might discharge his own interest in the judgment, he had no right to discharge his attornies' interest.

As it respects the second point, it is contended--that, when a man is so much intoxicated as to be incapable of exercising his ordinary judgment, he is not bound by his contract. The reasons in Barrett v. Buxton would bring us to this conclusion. In that case intoxication is likened to insanity. In the case of insanity, it is not necessary to shew the insanity to be complete and entire: any degree of insanity that affects the judgment and incapacitates it for weighing consequences, is sufficient. Barrett v. Buxton, 2 Aiken, 168. A man in a state of intoxication may know, that, in giving a conveyance of land he parts with the property, and thus be said to know the consequences of the act, when, at the same time, he is wholly incapable of forming a proper judgment of the propriety of the act. If the language of the charge is law, then, a man may cheat another, in a partial state of...