Dean v. Swift , 11 Vt. 331 ( 1839 )

The opinion of the court was delivered by

Redfield, J.

We think the amendment was properly allowed by the county court. The writ being made returnable at the term next to be holden, and that term being appointed by general statute, of which all the citizens of the state are bound to take notice, the time was sufficiently definite without stating the day, on which the term would begin. The statement of a wrong day might well be rejected as surplusage. Hence the amendment allowed was clearly within our statute of jeofails, which provides that the several courts shall proceed and render judgment according to the right of the case, notwithstanding any “ defect or want of form,” in the writ, process or other pleading, &c. .

-Under a similar statute in England, all amendments of process have been allowed, before judgment, when there was- any thing to amend by — i. e. when, from the process itself, it could clearly be determined what was intended. The courts in this state have, in practice, adhered to the English rule.

In regard to the competency of the witness admitted to testify in the court below, we see no good ground of doubt. The witness appears not to have been appointed deputy jailer, but to have acted as the mere servant of the sheriff in keeping the jail. He had the keys of the prison and took prison bonds for the liberties of the prison, in the absence of the sheriff. In this situation he signed the bond, now in suit, as witness, the sheriff not being present. We do not perceive how he had any more interest in the present suit than a clerk in a store has in a suit upon a note taken by him in the ordinary course of his business: The witness in the present case is, at most, only liable for negligence. No such question here arises. If that had been the case, perhaps the witness would be incompetent to testify, on account of. an interest in the particular question of negligence, as was held by this court in the case of Denison v. Hibbard, 5 Vt. R. 496. We do not perceive bow the present case can be distinguished from the common case of an agent, who acts on the part of plaintiff or defendant, and who is, on that account, always admitted ex necessitate, as it is said. 2 Stark. Evi. 767 and cases cited. Fisher v. Willard, 12 Mass. R. 379. Phillips et al. v. Bridge, 11 Mass. R. 242.

Judgment affirmed.