McGregor v. Balch
Supreme Court of Vermont
Scire Facias upon a recognizance in the sum of one hundred dollars, entered into by the defendants, on the 22d day of January, 1840, before Calvin Morrill, Esq., a justice of the peace, on an appeal being taken by Coben Balch and Coben Balch, Jr., from a judgment rendered against them by said justice in an action in favor of the present plaintiff against them.
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Scire Facias upon a recognizance in the sum of one hundred dollars, entered into by the defendants, on the 22d day of January, 1840, before Calvin Morrill, Esq., a justice of the peace, on an appeal being taken by Coben Balch and Coben Balch, Jr., from a judgment rendered against them by said justice in an action in favor of the present plaintiff against them. The declaration described a recognizance entered into by the present defendants only, and alleged that the condition of said recognizance was, “ that the * said Coben Balch and Coben Balch, Jr., should' prosecute their ‘ said appeal to…
1Opinion of the Court
The opinion of the court was delivered by
Redfielb, J.
1. It is urged that the non-joinder of all the parties to the recognizance, in this case, is a fatal variance, which might be taken advantage of, upon trial, upon the plea of nul tiel record. But we think not. The rule and the reason for it seem to us to be the same, whether the declaration be upon a contract of record, or upon any other written contract, — as for example, a bill, note, or bond. And in all these cases it is well settled that the omission of a joint contractor can only be taken advantage of by plea in abatement, unless such…
2Cases cited2 opinions
- Blish v. GrangerSupreme Court of Vermont · 1834
- Rogers v. JuddSupreme Court of Vermont · 1833
3Cited by11 opinions
- State v. . CollinsSupreme Court of North Carolina · 1894
- Sinsheimer v. William Skinner Manufacturing Co.Illinois Supreme Court · 1896
- State Bank & Trust Co. v. W. O. Horn & Bro., Inc.Court of Appeals of Texas · 1927
- In Re Estate of RushfordSupreme Court of Vermont · 1941
- Hyde v. LawrenceSupreme Court of Vermont · 1877
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