Avery v. Lewis , 10 Vt. 332 ( 1838 )

The opinion of the court was delivered by

Willums, C. J.

rlt does not appear that any question was raised in the county court in relation to the pleadings. The case was probably treid on the pleadings put in before the justice. The two judgments and executions, as well as the bond were either given or offered in evidence, and the court, without any reference to the pleadings, as we can learn from the case, charged the jury that the evidence was not sufficient to enable- the plaintiff to recqver.

The evidqnpe did not prove the first count. The bond, purports to have been taken on a judgment and execution, for the sum of seven dollars damages, and four dollars seventy six cents costs. The execution was for seven dollars damages, and' seventy six dollars and four cents costs. When the damages and costs are added together in the execution, they do not agree with the amqunt, as described in the bond. This was a variance, and presented a question for the court to determine. They should have excluded the execution from being given in evidence, or have determined that the evidence did not support the issue. This was their decision and we think it was correct. The plaintiff failed to support the first count.

On the second count, the execution, given in evidence, and the one recited in the bond, agreed as to sums and dates. But in the margin of the execution, it is entitled as of Windsor county, and after the name of the defendant, instead of saying, of the county of Windsor, it reads in the county of Windsor. And it is argued that from this it is to b.e inferred, that the judgment was rendered in the county of Windsor. If there had been nothing in the execution, by which it would have appeared that the judgment was rendered in the county of Rutland, the venue in the margin would determine where the judgment was rendered. If there is, the venue in the margin will not control. It may help, but it cannot hurt.

It appears that the execution issued on a judgment, rendered by a justice of the peace, for the county of Rutland, and it is dated at Sherburn, which is in the county of Rut-land, It would be a violent and unwarrantable presumption, that the magistrate went out of his jurisdiction into another county to try a cause, and came back to issue the execution. The words in the county of Windsor, after the name of the debtor, obviously apply to his residence,— are a part of the description of the person, and cannot be considered as describing the place where the judgment was rendered, which need not in any case be inserted in the execution. The judgment itself also appears to be regular.

The question raised by the plea, that the execution contained no command to commit the debtor to the jail in Woodstock, was decided in the case of Lewis v. Avery, 8Vt. R. 287. A mistake in the name of the town, where the jail is situated, is to be treated as a clerical error, and does not render the execution void, or the imprisonment unlawful. The evidence on this count appears to have been sufficient to entitle the plaintiff to recover. As to this count the charge was erroneous.

The judgment must, therefore, be reversed.