Durkee v. Marshall

14 Vt. 559

• Court: Supreme Court of Vermont
• Decided: January 15, 1842
• Status: Published

Opinion

By the Court.

There is no statute requiring such recognizance to be entered; and no such practice has ever obtained. The tenth section of the thirty-third chapter of the Revised Statutes has reference only to that class of petitions named in the ninth section. We cannot consider the citation in this case a writ of summons within the terms of the fifth section of the twenty-eighth chapter of the Revised Statutes. The plea in abatement, therefore, must be overruled.

The court held also in this case, that they could not proceed to the hearing of the case upon its merits, unless furnished with a properly authenticated copy of the minutes of the judge who tried the case in the county court, or evidence showing that such copy had been applied for and could not be obtained, in which case only would the court dispense with the copy of the minutes, and take the affidavit of the attorneys as to what passed at the trial.