Worthen v. Prescott

• Citation: 60 Vt. 68,11 A. 690
• Parties: WORTHEN et al. v. PRESCOTT.
• Decision Date: 19 December 1887
• Court: United States State Supreme Court of Vermont

11 A. 690

60 Vt. 68

WORTHEN et al.

v. PRESCOTT.¹

Supreme Court of Vermont.

December 19, 1887.

Exceptions from Orange county court.

Scire facias. Heard on demurrer to declaration by the county court, Orange county, December term, 1886; WALKER, J., presiding. Demurrer overruled, and declaration adjudged sufficient. It was alleged in the declaration that the plaintiffs commenced an action of assumpsit against one Morey on the twenty-ninth day of December, 1885; that the writ was made returnable before a justice of the peace on the twenty-ninth day of February, 1886; that an affidavit setting forth that the defendant was about to abscond from the state, and had property of more than $20 secreted about his person, was duly filed with said justice before the issuing of the writ; that said writ was made to run against the body of the said Morey; that he was arrested by a proper officer on said writ, and that the defendant became his bail by indorsing his name on the back of said writ; that, on the return-day of said writ judgment was rendered in favor of the plaintiffs for the sum of $139.55, damages and costs; that the defendant delivered his principal, the said Morey, at the time of the trial, into court, in discharge of himself as bail, and was discharged; that, after judgment had been rendered, said Morey submitted himself to be examined on his application to be allowed to take the poor debtor's oath, in accordance with R. L. § 1488; that, after a partial hearing, the case was continued, at the request of the said Morey, for nine days for a further hearing; that the defendant became surety before said justice in the sum of $200 for the personal appearance of said Morey on the continuance day, and, in default thereof, that he should satisfy said judgment; that on the continuance day M. did not appear; that the justice adjudged that Morey was not entitled to take the poor debtor's oath, and adjudged the bail of said Prescott forfeited; that execution was issued, and placed in the hands of a proper officer, who made a return of nulla bona and non est inventus on said execution; and that said writ of execution and the judgment aforesaid remain in full force, not reversed, annulled, or set aside, or in any way paid or satisfied to the plaintiffs. Exceptions by defendant.

John H. Watson, for plaintiffs.

After the defendant had delivered his principal into court in discharge of himself as bail, he (the defendant) became surety for Morey's appearance on the eighth day of March, in accordance with the provisions of section 1469, R. L.

A. M. Dickey, for defendant.

It is insisted that it was error in the court below to overrule the demurrer. The justice had no common-law right to take such a recognizance; all his powers are statutory, and certainly the statute confers no such authority upon a justice in a civil suit, as this was. If it should be held that section 1469 applies to a justice, then we say that the statute provides that when the principal is delivered into court, unless the principal procures sufficient surety for "his appearance, the court shall order him committed to jail, and such commitment shall be deemed a commitment on the original writ." Then we say, if he procures a surety, it shall be upon the original writ; however, if the commitment is on the original writ, the surety should be so too. In section 1407 the statute provides that the justice may take a recognizance in case of judgment against an absent defendant. Abells v. Chipman, 1 Tyler, 377. In section 1062, the power is expressly given to justices to take recognizances in civil suits appealed to the county court. Chapter 46 defines the power of justices generally; no such power is given. When one becomes surety on a justice's writ issued against the body, the statute provides that the officer shall give the bail a bail-piece, and with that the bail may take the principal anywhere, and bring him into court; but in this case there is no provision for a bail-piece, and the bail is powerless to bring the principal. This alone is sufficient to show that the recognizance is good for nothing. In all other cases, the statute makes provision for the bail, but none in this case. Strong v. Edgerton, 22 Vt. 249.

The justice had no authority to declare the recognizance forfeited. The whole proceedings against this defendant after he surrendered Morey into court Were of no binding effect.

We insist that the case had been adjourned by the justice before the recognizance was entered into, and therefore is void. Converse v. Washburn, 43 Vt. 129.

If, by the common law, a justice of the peace has power to take recognizances in any cause pending before him, why has the legislature in all the cases, both criminal and civil, made provisions whereby a justice may take recognizances? It is plain that no authority is vested in a justice to take recognizances, except what is given by the statute.

The justice required the principal, Morey, to give a recognizance in the sum of $60 more than the law required. This is irregular, and defendant now moves to discharge this bail. Jennings v. Sledge, 3 Ga. 128. It is expressly decided in that case that the irregularity may be taken advantage of by motion to discharge the recognizance. Washburn v. Phelps, 24 Vt. 506.

ROWELL, J. This is scire facias on a recognizance entered into by the defendant for one Morey before a justice. The declaration is demurred to, which brings in question the validity of the recognizance. The defendant was bail for Morey on a writ issued as a capias against him in an action of assumpsit in favor of the plaintiffs, and on the return-day he surrendered his principal into court in discharge of himself, and was discharged....