Richardson v. Hitchcock

The opinion of the court was delivered by Bennett, J. The defense of the action is put upon the ground of a tender of the additional costs occasioned by the appeal, and a denial of there being any intervening damages. We think the deposition of John It. Smith was admissible, so far as it was received by the county court. That part of it included in brackets, and going to show the declaration of Jacob Stebbins to the deponent, in regard to the amount of his property, was excluded by the court below. But the fact that Stebbins gave in his list, for 1850, for property to the amount of some six hundred dollars, is a distinct fact, and has some tendency to prove that he had property to that amount, and this act of the principal is equally evidence against the surety. The opinion of the deponent that the principal, in May, 1850, was worth six hundred dollars, we think was well enough admitted. The deponent had been acquainted with the principal from the spring of 1835, and he had worked for the deponent more or less, several years, during his residence in the town; and, in 1850, the deponent Was one of the assessors of the town, and the principal gave in his list for real and personal estate for that year, to the amount of six hundred dollars. The deponent gave the grounds of his opinion. In Hard v. Brown, 18 Vt. 87, it was held that a witness might be allowed to express his opinion as to the solvency of an individual, as derived from a personal acquaintance with him, and from his reputation, in this respect, in the community. We think it was competent, for the purpose of showing insolvency in the principal before final judgment was obtained against him, to show that in March, 1851, he swore out of jail on the ex-execution in favor of Patty Hitchcock, and we see no objection to the medium of proof. It is evidence of insolvency, as against the principal; and, as the relation of principal and surety existed between Stebbins and the defendant, it is evidence against the latter. The proceedings of the jail commissioners may be proved by parol. They have never, with us, been regarded as a court of [763] iecord. They testified that Stebbins had, by them, been admitted to the poor debtor’s oath, and this was all that was important to the case. It was of no particular importance, in this case, whether a certificate was lodged with the jailor or not, and we see no objection to the admission of the certificate lodged with the jailor, as a part of the transaction, although signed by only one of the commissioners. If the sheriff had been sued for an escape, by the creditor in the execution, the case would have been quite different. We see no objection to the principles of the charge, and it was fully warranted by the case of McGregor v. Balch, 17 Vt. 562. Judgment affirmed with costs,