Bowman v. Stowell , 21 Vt. 309 ( 1849 )

The opinion of the court was delivered by

Poland, J.

1. As to the replication to the plea in abatement. The writ issued against the bodies of all the defendants, but was served by attaching the body of the defendant Glazier only, and was served upon the other defendants as a writ of summons, or by attachment of their goods. It is insisted by the defendants, however, that, as the affidavit, which was filed, only entitled the plaintiff to a capias against the defendant Glazier, and the writ in fact issued as a capias against all the defendants, the writ .was void; and the case of Aiken v. Richardson, 15 Vt. 500, is relied upon in support of this position. But an examination of that case has satisfied us, that it does not support this idea. That case was scire facias against the defendant, as bail for Richardson on a writ of attachment, on which his body had been arrested. The plaintiff in that case filed an affidavit at the time of praying out his writ against Richardson, but not in conformity with the provisions of the statute, — so that the case was considered to be as if no affidavit had been filed. The court held, that, therefore Richardson' was illegally arrested, and that, as the plaintiff had no right to hold him to bail, the defendant could not be liable as bail. Some general expressions of the Chief Justice, in delivering the opinion, “ that the court had no jurisdiction to issue the writ,” &c., are quoted, which alone might seem to countenance the plaintiff’s doctrine; but on inspection of the whole opinion it is evident, that no such doctrine is intended to be advanced, or held, in the case, and, in commencing the discussion of that question, the Chief Justice states the question to be, “ whether the writ in that case was void, so far as it authorized the arrest of Richardson’s body, or not;” and evidently his conclusions were intended to apply only to that extent.

In the case of Langdon v. Dyer, 13 Vt. 273, this court had directly held, that a writ, issued as an attachment against the body of the defendant, but not served by attaching his body, was not abate-able for that cause, although it could not legally have been served by attaching his body. It is hardly to be supposed, that so recent a case was intended to be overruled, as no allusion is made to it, either by court or counsel.

2. The statute enacts, that “ no person, who is a resident citizen of this state, shall be arrested,” &c. It would of course be necessary, in order to make a valid plea in abatement, grounded upon .this statute, for the defendants to allege, that they were, at the time of the arrest, “ resident citizens of this state.” This plea contains no such allegation. It alleges, that “ the defendants are 'resident citizens of this State;” but this allegation in terms applies to the date of the plea, and not to the time of issuing the writ, or of service upon the defendants. The1' defendants might have been resident citizens of the state at the time the plea was filed, and not have been so at the commencement of the suit.

It is said, however, that the plaintiff, in his writ, described the defendants, as living in this state. But it by no means follows, that, because the defendants are described in the writ as of Londonderry in this state, they are resident citizens of the state; as it is customary to set up transient persons as of the place where they may happen to be at the time of bringing the suit. But however this may be, it cannot help the plea, which must stand good by itself, and cannot be aided by facts alleged in the writ, or declaration, unless expressly referred to, — which is not done in this case. Under the strict rules, which have obtained in relation to pleas in abatement, we think this plea must be regarded as fatally defective.

3. The remaining question is in relation to the amendment, which the county court permitted the plaintiff to make in his declaration. The question for us to decide is, whether the county court had the power to permit the amendment, or not; for if it was within the legal power of the county court, we cannot revise their exercise of it; for that was a mere discretion, which is not the subject of error.

In the case of Carpenter v. Gookin, 2 Vt. 495, the county court permitted the plaintiff to strike out his original declaration, which was in assumpsit, and insert a new declaration in trover, — thereby changing not only the form of the action, but changing it from an action ex contractu to ex delicto. This court held that to be an amendment not in the legal power of the court below to grant. In the case of Emerson v. Wilson, 11 Vt. 357, the suit was originally brought before a justice in the name of Emerson & Godfrey, and the justice permitted Godfrey’s name to be struck out, so as to leave the suit in the name of Emerson alone. It was held by this court, that such amendment could not be made. Thede decisions have established, in this state, that amendments cannot be allowed, which change the parties, or the cause of action; and various decisions would seem to have established the corollary to this rale, that the court have power to allow any amendment, which does not change the parties, or cause of action, unless it be some statute requisite in relation to the process itself.

It has been a very uniform practice 'in this state, to permit any amendments of declarations, either by correcting defective counts, which otherwise would be bad on demurrer, or to permit new counts to be added in different form, counting upon the same cause of action; — and even where a declaration contained counts, which could not legally be joined, amendments have been permitted by striking one out of the declaration. In the case of Skinner v. Grant, 12 Vt. 456, which was an action for slanderous words spoken of the plaintiff as a minister, and the words alleged to have been spoken of him were actionable only by reason of being spoken of him in his capacity, or profession, the court .permitted an amendment to be made, to show the words to have been spoken of him in his ministerial character, — without which amendment the action clearly could not have been sustained.

In the present case no new cause of action was. introduced by the amendment, and no change of parties to the suit. The declaration, as originally drawn, omitted to state the character, in which the plaintiff held the note, or brought the suit; and the declaration was of course subject to demurrer. But we think the case of Skinner v. Grant, went much farther, than we are required to go to sustain this amendment.

We find no error in the judgment of the county court, and their judgment is affirmed.