Griswold v. Barker

57 Vt. 53

• Court: Supreme Court of Vermont
• Decided: January 15, 1885
• Status: Published

Opinion

The opinion of the court was delivered by

Rowell, J.

The judgment of forfeiture fixed the petitioner’s liability to such an extent that he had a right to pay without waiting to be forced, if no sufficient reason existed as between him and the defendant why he should not, and none appears. Conceding that the judgment for the penalty and the execution issued thereon were void, as contended, that objection was merely technical, as the petitioner’s liability continued notwithstanding, and proper proceedings could have been instituted- at any time to enforce it.

Nor was the petitioner bound to delay payment that a motion to chancer might be interposed. There had been ample opportunity for such a motion, but it had not been made; nor does it appear that there was any ground for making it, and probably there was none. The case then is this: The petitioner Avas under obligation on his recognizance, without defence on the merits or ground for á motion to chancer, and so he paid, as well he might.

If authority is needed, we have it in Curtis v. Banker, 136 Mass. 355, which was thus: Defendant gave plaintiffs a bond of indemnity for becoming sureties on the official bond of Holman, a paymaster in the army. Holman defaulted, and the Government sued his bond without first demanding of him or the plaintiffs payment of the deficit. Plaintiffs knew of no defence, and were advised that there was none, and so, after vainly endeavoring to obtain relief through the Court of Claims, they suffered a default and paid the judgment, and brought this suit on defendant’s bond of indemnity. Defendant objected that under their bond to the Government there could have been no legal default nor legal compulsion on plaintiffs to pay, until demand on them or Holman, and that by consenting to a default they had waived a legal defence. But the court said that if the defence suggested might have been made, it was entirely technical in its character, as it would have operated only to defeat the suit as then brought, and been no bar to a suit brought after proper demand, and that whatever might have been the case had there been a good defence on the merits, plaintiffs’ failure to interpose a purely technical defence, although known to them, would not prevent their recovery, for it could not be ruled as matter of law that they were bound to make such defence.

Decree reversed, decree for the petitioner, and cause remanded, with mandate.