Sinclair v. Gadcomb , 1 Vt. 32 ( 1827 )

RoYc®, J.

delivered the opinion of the Court.

. It is first insisted in support of this writ of error that a council-lor has no authority to sign a county court writ, to be served out' of the county in which it is made returnable. The statute enacts “that every writ or process returnable to any county court within this state shall be signed by a Judge or Clerk of the County ■Court in which the cause is to be tried, or by a justice of the peace of the same county.” Thus far it would seem that such writ, when signed by a justice was as perfect and available to every purpose, as if signed by the Clerk or- Judge of the Court; and that the only question would be whether a Councillor is a Justice of the Peace of the county in which he resides, so as to ■ take the authority here conférred. But tins enactment is immediately suceeded by another, “that all writs or processes signed by a Judge or Clerk of the County or Supreme Court, as well original as judicial, shall, run into- any county or place within this state, and be there executed by any. officer to whom directed.” The construction upon these two provisions of- the statute has al-s ways been, that a common Justice of the Peace for the county could not sign such writ, or perhaps any County Court writ to be served in another county. It would therefore seem to result, that the right of a councillor to sign a county court writ, is not expressly conferred by any statute. The office of Justice of the Peace for the whole state, as incident to that of Councillor, is derived from the constitution ; and the construction of the constitution as far as we are informed has ever been, that the office ofJustice of the Peace through-outthe state includes’that of justice for every county and place within the state, whenever necessary to be assumed, or understood to sustain an -act of a councillor in his capacity of Justice of the Peace. When the authority of. Councillors.to sign these writs, a» Justices of the Counties, where the writs issued, was thus established, it came, to be generally understood, that such writs by them signed were not limited by the local jurisdiction of the County Courts to which they were made returnable, but might run to the extent of their own jurisdiction-as Justices of the Peace.— Whether this conclusion was correct or not, it is settled byprac-tice too long and uniform to be now disturbed. And there ÍS the less OCCassion to do this, since it is a matter of indifference how the law on this point is. No evil can result from the power thus exercised by these magistrates $ it is the performance of an act almost wholly miri-isterial, and is but the incipient step in pursuit of justice.

Bailey, for plaintiffs in error. Jlldis and Davis, for defendant in error.

As to the other ground of error, it may well be doubted at this day, whether a judgment should be reversed because a wrong name or denomination was affixed to the sum recovered. Biit without deciding this as a general question, we are of opinion that the sum adjudged to the plaintiff below was properly recovered as damages. The 75th section of the judiciary act of 1797 relates to actions on bonds with a,penalty where the party is not to have successive remedies, as is contemplated in section 99 of the same statute, butis to take his whole satisfaction at once. Inthisclass of bonds was the one in question. Here the formal judgment for the penalty is dispensed with, and the court is authorised at once to .give judgement for what is due in equity and good conscience. It is true that no name is given to the smaller or subordinate sum; it is not, however, the nominal debt sued for, nor can it perhaps with strict propriety be called a part of that debt, (where the condition is not for the payment of a lesser sum in money, but for the performance or forbearance of a collateral act,) but is in truth the damages sustained by the party. The entry of judgment in this form, when justice is otherwise done, cannotbe alleged as the ground of error. The judgement of the County Court is therefore affirmed. - 4