Whitney v. Silver
Supreme Court of Vermont
Audita Querela. The complainants alleged, that the defendant, Silver, sued out a writ of attachment against them, declaring an assumpsit, returnable April 28, 1846, before a justice of the peace, and caused it to be served upon Whitney, by attaching his property and giving him personal notice thereof, and upon Titus, by a nominal attachment of property and leaving a copy at his residence in Montpelier, in the hands of his wife; that at the return day of the writ Whitney…
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Audita Querela. The complainants alleged, that the defendant, Silver, sued out a writ of attachment against them, declaring an assumpsit, returnable April 28, 1846, before a justice of the peace, and caused it to be served upon Whitney, by attaching his property and giving him personal notice thereof, and upon Titus, by a nominal attachment of property and leaving a copy at his residence in Montpelier, in the hands of his wife; that at the return day of the writ Whitney appeared and agreed with the plaintiff’s attorney, that the suit should be continued to May 18, 1846, and that on that day…
1Opinion of the Court
The opinion of the court was delivered by
Bennett, J.
The county court held, that the facts detailed in this case would not sustain an audita querela; and this is now the only question before us. It has been settled, that in an action upon a joint contract against two or more, where all have been duly served with process and are properly brought by means of the process and the service of it before the court, one of the co-defendants may employ an attorney for all, or may appear and control the suit as to all the defendants. This proceeds upon the ground of an implied authority. The case of…
2Cases cited2 opinions
- Marvin v. WilkinsSupreme Court of Vermont · 1826
- Scott v. LarkinSupreme Court of Vermont · 1841
3Cited by6 opinions
- Wade v. Wade's Admr.Supreme Court of Vermont · 1908
- Batchelder v. MantakSupreme Court of Vermont · 1978
- Eastman v. WatermanSupreme Court of Vermont · 1854
- Josiah Abbott & Co. v. DuttonSupreme Court of Vermont · 1872
- Folsom v. ConnerSupreme Court of Vermont · 1876
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