Kingsbury v. Whitney

5 Vt. 470

• Court: Supreme Court of Vermont
• Decided: February 15, 1833
• Status: Published

Opinion

Hutchinson, C. J.,

after alluding to the facts as they appeared in the case as it has now come up from the County Court, and as it came up a year ago, pronounced the opinion of the Court.

That the signing of these executions by Morrill, as Major, accompanied with proof, that the office of Colonel was yacant, was decided a year ago, to be well enough. The mast correct mode of signing, is that which best describes the official character in which the person acts. For instance, when a Justice of the Supreme Court acts as a Justice of the Peace, merely, he should sign as a Justice of the Peace throughout the State. Yet his signing as Judge of the Supreme Court is well enough ; because that carries with it the office of Justice of the Peace throughout the State. So a Councillor may, in a like case, sign as Councillor: because that carries with it the office of Justice of the Peace for the whole State.

Again, it is urged by defendants’ counsel, that the demand, now shown, is conditional and void. It is not so viewed by this Court. The testimony, if it shows any thing, shows a direct demand of the fines. And, the commandant’s being, and expressing himself willing still to receive the returns, ought to have no effect upon this case, unless the returns were then delivered, according to the proposition, so that the commandant of the regiment might make his returns to the General. This shows a spirit of accommodation in Major Morrill, but it furnishes no alleviation to the defendants, as they declined meeting it in any way to answer the demands of the law, or enable the Major to ’ perform his duty.

Again, the executions were objected to, as being defective upon the face of them. They mention delinquency of making their returns, without stating what returns. Nothing has been exhibited in the case to show any uncertainty in this respect. There is full proof of a neglect to make the June returns; and the demand, which must have been made in sixty days, was made July 3d, for not making returns the preceding June; and no others are spoken of. The statute has furnished no form, nor special direction, to guide in this particular. And what is averred in these cases, is as much as is required by the statute, in the form given for Captains, when they issue executions.

Another defect pointed out, is, that each fine is stated to be assessed on die 20th of September; and it is urged that the time was then passed, in which the defendants could be amerced; it being more than sixty days from the forfeiture. This would be a fatal objection if the statute required a record of the amercement, and required that record to be made within sixty days. But the only duty required to be performed in sixty days is, the making the demand of the fine. — That must be done within sixty days, or the fine can never be collected. The statute requires no record to be made of this; nor does it attach any validity to one, if made. Parol proof would still be required of the demand. Men are not appointed to military offices because of any supposed acquaintance with legal proceedings : and more must not be required of them, than is either directed by statute, or clearly implied as a matter of duty. Where the recital in the execution is, that the amercement was on the 20th of September, and nothing else is brought into the case to show when, how, or whether, the forfeiture had become absolute upon the defendants in the execution, it must be a fatal defect. Such was this case a year ago. But when, as in the present case, the fact is established by other proof, that there was a neglect, by which a forfeiture was incurred, and that a demand was seasonably made of this forfeiture, and that fifteen days had elapsed after the demand, and yet the defendant had not paid this forfeiture or fine, the liability of the Captain to pay this fine had become complete and absolute, whether any record or memorandum in writing had been made of it' or not. It was, therefore, unnecessary for the Commandant to state in his execution when, or by whom, the defendants were amerced. It would have been sufficient for him to have recited, that the defendants had forfeited the penalty of twenty dollars for delinquency in making returns. As his statement of the 20th of September was no description of any record, and as the day was immaterial with regard to that fact, which was true, in a legal sense, any day, and each day, after the demand made and fifteen days had elapsed from the time of such demand, the same may be treated as surplusage, and not at war with the facts otherwise shown, and which fully show the matter matured for execution. The objections to the execution are overruled 5 and, the facts being as the jury must have found them, the imprisonment was legal.

Another question is urged, whether this note is not void for want of consideration. This objection is predicated upon the want of power in the plaintiff, after he had committed the defendants on the two executions, to receive this note and discharge the executions. It appears, that this note was received instead of money; and was, probably, considered as good as money; and the jailer, by direction of the plaintiff, discharged the executions upon receiving this note, with no other payment. As the cause went to the jury, and as they have found the facts to be, we are under no necessity of deciding upon the strict power of the plaintiff to direct the executions discharged, upon receiving this note, payable to himself. Neither he nor the keeper of the jail, can compel those, who were entitled to the money, to wait for the collection of this note. So far as the plaintiff was liable, if at all, he might be treated as having received the money. The Sheriff, also, might have been sued for the escape; and the taking of this note would have been no defence. But, that any legal process could afterwards have issued against Whitney and Kemp, is by no means certain. Before the commitment, the plaintiff, the Adjutant, had an undoubted right to receive the money, and discharge the executions. — After the commit-men^; the keeper of the jail had as good a right thus to receive the money and execute discharges. Whitney and Kemp, as if unable then to pay the money, gave this noth themselves and sureties, on seeing the executions discharged. They may have given pledges to their sureties, which would add to the difficulty of pursuing the claims, otherwise than upon this note. It was clearly received as payment; and answered the same purpose as money to procure the discharge of Whitney and Kemp from their imprisonment; and they, surely, have no right to object to a recovery on the note, unless they are in danger of being again pursued with new executions. So long a time had elapsed with no wish or pretence of the plaintiff or the commandant, or the Quarter-Master, or any one else, to pursue them in any other way, than by collecting this note, it was correctly submitted to the jury to presume the consent and acquiescence of all concerned, that this note should stand as security for the amount of the executions; and that the plaintiff, the payee of the note, should be their trustee to collect the note, and disburse the money; retaining his own fees, which were included in the note.

Daniel Azro A. Buck, for the defendants. Jacob Collamer, for the plaintiff.

The objection to the Court’s admitting direct testimony of Major Morrill’s consent to take this note in payment of the executions, is answered by the result, that no such testimony was given; and, therefore, the defendants could not be injured by it.

The Court discover no error in the proceedings of the County Court at the last trial ; and their judgement is affirmed.