Barnes v. Lapham
Supreme Court of Vermont
Assumpsit. The defendants plead the general issue, with notice that they should give in evidence the following special matter, viz : that after the commencement of the suit, and before its entry in the county court, a judgment was rendered by a justice of the peace, in favor of the plaintiff, with his consent, by the confession of the defendants, for the amount of the plaintiff’s claim, and the costs then accrued.
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Assumpsit. The defendants plead the general issue, with notice that they should give in evidence the following special matter, viz : that after the commencement of the suit, and before its entry in the county court, a judgment was rendered by a justice of the peace, in favor of the plaintiff, with his consent, by the confession of the defendants, for the amount of the plaintiff’s claim, and the costs then accrued. Trial by the court, March Term, 1855, — Rierpoint, J., presiding.' Upon the trial it was conceded, that a judgment was confessed by the defendants to the plaintiff, as set forth in…
1Opinion of the Court
The opinion of the court was delivered by
Bennett, J.
We do not see how the plaintiff can get along with his case. The confession of judgment operated as a merger of his original cause of action, which was made the ground of this suit; and the agreement of the parties at the time, that this suit should go on for the purpose of charging the trustees, and perfecting a judgment against them, cannot arrest the merger and neither can the defendants be estopped from using the merger as a defense to the original cause of action.
The statute passed last fall cannot reach this case. This judgment-was…
2Cited by1 opinion
- Fletcher v. BennettSupreme Court of Vermont · 1864