Parkhurst v. Sumner

23 Vt. 538

• Court: Supreme Court of Vermont
• Decided: August 15, 1851
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

This is a suit upon a recognizance, and two pleas are interposed, one alleging, that the judgment in the principal action was entered up by collusion between the original parties, with a view to defraud the bail, and the other alleging, that the original plaintiff was induced to consent to the judgment for costs against him, when in a state of intoxication, procured by this plaintiff.

The subject matter of this latter plea is no doubt concluded by the judgment, both as to the principal and the bail. It is a universal rule in regard to judgments, that all matters, which might have been urged by the party before the adjudication, are concluded by the judgment, as to the principal parties and all privies in interest, or estate, — and among privies are no doubt included bail.

The subject matter of the first plea seems to us not to come altogether within the true intent and purpose of this rule. This collusion between the original parties is not a matter, of which they could ever have availed themselves, and there is no doubt it will avail the bail, either at law, or in equity. And we see no very obvious objection to allowing the bail to plead it at the earliest opportunity afforded him in the suit upon his recognizance. We think, therefore, that the substance of the plea is a good defence for him, and that it is not concluded by the judgment against the principal, since it is a matter, which no one could properly have urged in that action.

But it seems to us, that the form of this plea is bad, in substance, in not alleging, that the judgment was finally rendered in pursuance of the alleged corrupt agreement, and by the collusion of Sisco. Nothing of this is alleged, and no fair opportunity is afforded the opposite party to traverse the very gist of the defence, to wit, that the judgment was entered up collusively. A traverse of all the plea contains upon this point will only raise the question, whether the judgment was rendered at the June Term, 1842. The plea, it seems to us, should allege, at the least, that the judgment was rendered in pursuance of the corrupt agreement, and by the collusion and consent of Sisco, in order to enable the other party to raise the question upon a simple traverse. As the plea now stands, it may all be true, and the case in fact finally disposed of precisely in the mode alleged in the pleas in the other case,

* — which is not what we suppose the party intends by his pleas.

The declaration is said to be defective; but we have not been furnished with a copy.

The judgment is reversed; and as the substance of the defence is considered good, and the form bad, we think a repleader should be awarded, and costs abide the final event of the suit.

Repleader awarded both parties from the first, if they choose.

See Sisco v. Parkhurst, ante, page 537.