Holbrook v. Pearce

Royce, J. This case comes before the court upon demurrer to the second plea in bar, which sets forth the whole 617 proceedings before the board of jail commissioners, including a íiterai transcript of the certificates issued by them to the defendants, Pearce and Dwinnell. It is made a question in the argument, whether it should be understood, upon a just construction of the whole plea, that the oath actually administered to the debtors Was the oath given in the present statute, or the one prescribed by the repealed law : — and if the latter, whether that oath was a substantial and sufficient compliance with the existing law, so as to entitle ihe debtors to their certificates of discharge. But since there is another satisfactory ground upon which to rest our decision, I shall pass this part of the case without expressing an opinion. If it is conceded that a sufficient oath was duly administered, that alone did not effect the legal discharge of the debtors. It was also necesaary, before they could be authorized to depart, that proper certificates should be given, and delivered over to them and the jailor, especially to the latter. Staniford v. Barry, Bray. R. 200; Haight v. Richards, 3 Vt. R. 77. In this respect the requirements of the old and new law are the same. And when these certificates come to be pleaded, they must appear to apply, with requisite certainty, to the execution mentioned in the declaration. Otherwise, the plea can be no answer to the.action. Now the declaration in this instance sets forth a judgment and execution for $375.72 damages, whereas, the certificates describe an execution for $325.72 damages. This is a difference which apparently destroys the' identity of the execution, and must be fatal to the plea, as well upon the ground of repugnancy and variance, as on the ground that no certificates appear to have been granted, which were applicable to the demand sought to be recovered in this action. Sherwin v. Bliss, 4 Vt. R. 96; Avery v. Lewis, 10 Vt. R. 332. The judgment of the county court is accordingly reversed, and the plea is adjudged insufficient. But as there are other defences undisposed of in that court, the cause is again sent there, to be proceeded wfith in reference to those defences.