Legal Opinion

Dean v. Swift

Supreme Court of Vermont

Decided February 15, 1839PublishedCited by 5 opinions

This was an action of debt on a jail bond. The plaintiff was the execution creditor, and, as such, the assignee of the sheriff, who was the obligee of said bond. The writ was made returnable to the term of the county court “ next to be holden at Bennington, within and for the county of Ben'“mington, on the second Tuesday of December, 1837.” * The December term of said court was fixed by law on the first Tuesday, and this defect in the writ was pleaded in abatement.

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This was an action of debt on a jail bond. The plaintiff was the execution creditor, and, as such, the assignee of the sheriff, who was the obligee of said bond. The writ was made returnable to the term of the county court “ next to be holden at Bennington, within and for the county of Ben'“mington, on the second Tuesday of December, 1837.” * The December term of said court was fixed by law on the first Tuesday, and this defect in the writ was pleaded in abatement. The county court, after such plea, and on motion of the plaintiff, permitted the writ to be amended so as to be returnable on the…

1Opinion of the Court

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 *333surplusage. Hence the amendment allowed was clearly within our statute of jeofails, which provides that the several courts shall proceed and render judgment…

2Cases cited2 opinions

  1. Phillips v. BridgeMassachusetts Supreme Judicial Court · 1814
  2. Inches v. LeonardMassachusetts Supreme Judicial Court · 1815

3Cited by5 opinions

  1. Howe v. Lisbon Savings Bank & Trust Co.Supreme Court of Vermont · 1940
  2. Cartwright v. ChabertTexas Supreme Court · 1848
  3. Elwell v. OlinSupreme Court of Vermont · 1926
  4. Lowenstein v. GainesSupreme Court of Arkansas · 1897
  5. Howe v. Lisbon Savings Bank & Trust Co.Supreme Court of Vermont · 1940

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