Colgate v. Hill

The opinion of the court was delivered by Kellogg, J. Upon the trial of this case in the court below seval questions were raised, which have been elaborately discussed at the hearing in this court. 1. It is insisted, that the court and jury, who tried the case, were incompetent, by reason of interest, they being inhabitants of the county and liable to the payment of county taxes, and consequently interested in the penalty sought to be recovered. The law creating the penalty provides, that a moiety of the sums recovered shall be paid into the county treasury, for the use of the [62] county. Hence it will be readily perceived, that the triers were interested in the issue submitted to them. But this, we think, constitutes no legal objection to their competency. Whatever doubts might be entertained upon the question, if there were no statutory provisions conferring jurisdiction, we apprehend none can now be held. In chap. 10, sec. 9, of the Rev. Stat. it is enacted, that “ the county court, or any justice, within their respective jurisdictions, may take cognizance of any suit in favor of or against the county.” To take cognizance of a suit is to try it, and try it in the manner prescribed by law; — which is, if it be an issue of fact, by a jury of the county. The suit at bar is brought by a common informer, who prosecutes for himself and the county. The county are only interested in a moiety of the penalty. If the entire penalty were given to the county, and a suit brought to recover it, the county court could manifestly take cognizance of the suit. It can, therefore, hardly be contended, that the lesser interest, being but for a moiety of the penalty, renders the court incompetent. This exception cannot be sustained. 2. It is farther insisted by the defendant, that the county court erred in refusing to discharge Thomas C. Hill, who had at a previous term entered into a recognizance for the defendant for a review, from his recognizance, — it being alleged, that Hill was an important witness for the defendant. The questions arising upon this part of the case are of great importance, and we are not aware, that they have ever received a judicial determination by this court. The bail for'the review was not only for the costs, that might arise from the farther prosecution of the suit, but also for such intervening damages as might accrue by reason of the delay. The first question, that arises upon this branch of the case, is, had the county court power to discharge the bail, as requested ? That courts have been in the practice of discharging bail taken for the security of costs, upon the substitution of other sufficient bail, is shown by numerous authorities, and is of common occurrence. Nor are we aware, that the power of the courts, to this extent, has ever been questioned. Its exercise is often important to the due administration of justice. The case of Tomkins v. Curtis, 3 Cow. 251, shows, that in the state of New-York they discharge bail for an appeal from a justice’s court to the common pleas, upon the sub [63] stitution of other sufficient bail, when it becomes important to use the bail as a witness; — but what the particular undertaking of the bail was, in that case, does not appear. It might have been for costs only, and it might have included intervening damages. If it w.ere the latter, it would be analogous to our bail for a review. The case of Leggett et al. v. Boyd, 3 Wend. 376, is an authority to show that special bail may be changed, upon the substitution of other bail, when it becomes necessary to use the special bail as a witness. The liability of special bail, by the New-York practice, is presumed to be similar to that which prevails in the English practice, and is similar to the bail taken by the sheriff, under our law, upon an arrest of the body. It is an undertaking, “ that, if the defendant be convicted, he shall satisfy the plaintiff, or surrender himself into cus-* tody. 1 Tidd 211. We are also referred to the case of Dodge et al. v. Kendall, 4 Vt. 31, as decisive of the question now under consideration. That case, however, shows nothing more, than that the witness, whom the court say might have been discharged upon application and the substitution of other bail, was recognized in the writ for the costs of prosecution. It was, therefore, the common case of bail for costs; and the power to discharge bail in such cases has never been doubted. But we believe, that the power of discharging bail for appeals and reviews, upon the substitution of other bail, has often been exercised by the courts of this state, and that the practice is of long standing. That such power should exist in the courts would seem to be necessary to the furtherance of justice. Often times the party cannot foresee, that the testimony of the bail will become important to him, and yet something transpires in the progress of the subsequent trial, which renders his testimony very material, and if he could not avail himself of it, the greatest injustice might be done. Nor are we aware, that the change of bail would operate as an injury to the opposite party ; as the substituted bail would be liable to the same extent as the original bail. The result, then, to which we have come upon this point in the case, is, that the county court have the power to change the bail taken for a review, upon the substitution of other sufficient and satisfactory bail, and that the substituted bail will be holden for the cost and intervening damages accruing from the time the review was granted. [64] The next question arising in the case is, can the party demand the exercise of this power by the court as a matter of right1? We apprehend he cannot; but that the application is addressed to the sound discretion of the court. If it be admitted, that he may claim it as a matter of right, there would be no limit to his applications. He might demand a repeated change of bail during the progress of the trial, and perhaps by these changes endanger the security of the adverse party. But notwithstanding these consequences might follow the admission of such an unqualified right in the party, yet, if the right exists, it must not be denied. But we do not think, that any such absolute and unqualified right exists. Nor is it essential to the security of the just rights of the party, that such right should exist. For it is to be presumed, that, upon all proper applications to the court for a change of bail, where it is necessary to the maintenance of the rights of the party, the application will be granted. Should the court, however, in the exercise of this discretionary power, deny a proper and just application, (which we think would rarely occur,) the party would not be without remedy. Upon a petition for a new trial and proof of a meritorious case, we entertain no doubt he would obtain relief. The result to which we have come upon this part of the case is, that the refusal of the county court to change the bail taken for the review was the exercise of a discretionary power vested in that court, and consequently is not subject to revision in this court. This exception, therefore, cannot prevail. It is farther urged, that the charge was erroneous. The court instructed the jury, “ That if they found, that the conveyance of the property from Cook to the defendant was made, on the part of Cook, in bad faith and with an intent to withdraw the property from the reach of his creditors and to avoid their rights, and that the defendant was privy to such intent and lent himself to Cook to aid him in withdrawing his property from the reach of his creditors to avoid their rights, and justified the same to have been made bona fide and upon good consideration, the defendant’s base was within the provisions of the statute, and he was liable to the statute penalty, notwithstanding they should find, that the defendant paid a full and adequate consideration for the property.” It was so held to be law by Lord Mansfield, in the case of Cadogan et al. v. Kennet et al., Cowp. 432, upon the statute of Elizabeth, which is similar to ours. [65] The court in that case say, “ That if the transaction be not bona fide, the circumstance of its being done for a valuable consideration wjll not, alone, take it out of the statute; that they had known several cases, where persons had given a fair and full price for goods, and where the possession was changed, — -yet, being done for the purpose of defeating creditors, the transactions were held fraudulent and void; tha^ the question in every case is, whether the act done is a bona fide transaction.” The same doctrine was held by the supreme court of New-York, in the case of Beals v. Guernsey, 4 Johns. 352. It was so held by this court, in Edgell v. Lowell, 4 Vt. 405, and may be regarded here as the settled law upon this subject. It is the intent of the parties to the contract of sale, which determines the character of the transaction. The case at bar was so put to the jury by the court below, and we think correctly. The result is, that we find no error in the proceedings of the county court, and consequently the judgment is affirmed.