Brush v. Hurlburt , 3 Vt. 46 ( 1830 )

The opinion of the Court was pronounced by

Paddock, J.

This is an action on book account, originally commenced before a justice of the peace, demanding in damages $8,00. At the return day of the writ, the defendant appeared before the justice, and exhibited and pleaded a book account against the plaintiff of $23,00 in offset to plaintiff’s account. A jury having been summoned to try the cause, the defendant saw fit to withhold from them his book, and offered no evidence in support of his offset, and the jury returned a verdict for the plaintiff of $2,57, and the justice rendered judgement thereon. From that judgement the defendant prayed for, and was admitted to, an appeal to the next county court, where he caused the entry of his appeal to be made. The plaintiff then filed his motion, praying the court to dismiss the appeal from the doquet on the ground that they had not appelate jurisdiction of the cause. The record shows that the county court,considering the cause irregularly before them, did dismiss it from the doquet of the court. And the only question here to be determined is, whether the defendant had a right of appeal from the judgment of the justice? or, which raises the same question, whether the county court erred in dismissing the appeal ?

The plaintiff’s claim not being over ten dollars, and the judgement of the justice not exceeding that sum, the right of appeal is restricted by the statute of 1821; yet, the defendant coming in with an offset, or the plaintiff with an offset to the defendant’s offset, which, had the same been the subject of the suit, would have entitled the party aggrieved to an appeal though not within the letter, it would clearly be within the spirit and intent, of the statute to grant an appeal if asked for. Suph might have been the case here. The defendant pleaded in offset a book account of $23,00, and had he followed it up with evidence, (though it might have been insufficient, in the opinion of the justice, to authorize the rendering of a judgement in favor of such offset,) or had the defendant made a sufficient excuse for not producing it, in either case he would have been entitled to an appeal, and the county court would have sustained the same, being satisfied that it was not fictitious. But from the fact that the defendant produced no evidence before the justice's court, and offered no excuse for not doing it, it is reasonable to conclude that he had none, and that his pleading items of book charge in offset, and calling for a jury, was a mere pretence. Therefore, the judgernent of the county court must be affirmed, there being no error in their dismissing the action from their doquet.

Smith, for plaintiff. Smalley & Adams, for defendant.

Judgement affirmed.