Bank of United States v. Tucker , 7 Vt. 134 ( 1835 )

The opinion of the court was delivered by

Collamer, J.

The only cause of demurrer to this declaration, now insisted on, is, that in alleging the commitment of the debtors to the jail in the city of Vergennes, by the sheriff of Addison county, it is not alleged that said debtors were already prisoners within said jail; as by the statute, the sheriff was authorized to commit to said city jail only in such case.

This is an action on the bond, and all that precedes the setting up of the bond is matter of inducement. So much of that as shows a state of circumstances in which the sheriff of Vergennes might take an official bond is immaterial, and all the remainder, surplusage. How much then is necessary ? By the statute rela-. ting to jails and jailers, section 10, (Comp. Laws, 219,) it is provided, “ that any person imprisoned in jail on mesne process in any civil action, or upon execution, §tc. shall be admitted to the liberties, &c. such prisoner first giving bond,” &c. So much in the declaration as showed the person in jail on execution issued from a competent court, was necessary. The declaration shows the issuing of such an execution, and shows the debtors were committed to the city jail of Vergennes. This shows all the necessary prerequisites. It is not necessary to allege, that the sheriff was sworn, the debtor in his bailiwick, the demanding payment at his house, the want of property, nor, by parity, a previous commitment in Vergennes. They are not predicates mentioned in the statute to the giving of the bond. Should there exist any such previous defect as would render the imprisonment absolutely illegal and void, it must be pleaded and shown by the defendant. What would have such effect as to malee the bond void, it is not now necessary to decide. It is however true, that if the plaintiff alleges more than is necessary, though that does not require him to make still further unnecessary allegations, yet if what he alleges makes an unlawful case, the court cannot reject a part as surplusage, and so save the case, but must give judgment against him. Ts such this case? The plaintiff alleges a commitment in the city of Ver-gennes, on an execution issuing from Addison county court by the sheriff of the county. If this is necessarily unlawful, the plaintiff fail. In one contingency this might be lawful, and as the sheriff acted, the court must by legal intendment suppose that contingency existed,'and the sheriff conducted lawfully, until the contrary is shown.

Judgment affirmed.