Hine v. Pomeroy

[106] The opinion of the court was delivered by Barrett, J. Unless the evidence offered to show the practice among attorneys in Burlington tended to show that Chittenden gave such instructions in this case, it was not admissible either as sustaining the defence, or as corroborating Taylor, or as contradicting Chittenden as a witness. It is to be noticed that the practice proposed to be proved was not limited to the particular class of cases" like the present, nor was it proposed to be shown that the practice was uniform and general. What was Chittenden’s practice in this respect was made the subject of issue and evidence by the defendants, and so they had the benefit of the question, both as bearing on the main point in controversy, and upon Chittenden’s credibility' and reliableness. That offer, therefore, excluded Ms practice. The difficulty with it arises from the impossibility of seeing how any inference can be drawn from the proposed evidence, as to what instructions Chittenden, in fact, gave in this case. There was no such relation of lawyers to each other, in respect to habits, and modes, and practice, in the details of professionaflervice in matters of this kind, as to make what is true of some, the ground of an inference as to what is true of another; and so it would have no tendency to show what another did on a given occasion in a given case. The distinction seems very plain between this case and those supposed in the argument, involving questions of contract for prices to be paid, or things to be done, the likelihood of which would be affected by market or customary value. We think there was no error in excluding the evidence offered. The next question is as to the construction to be given to the 73d section of chapter 30, General Statutes. The language is, “ whenever service of process cannot be made upon any person liable as sheriff, by reason of the removal of such person from the state, etc., an action of debt or scire facias may be brought by the party entitled thereto directly,” &e. It is claimed that, by construction, the court should limit the right to bring such action to cases in which the party should bring his action within reasonable time after the cause of action accrued. We yecognize and assent to the rules of construction established and [107] applied, as shown by the boohs. But we fail to regard this ease as one so falling within the scope of the rules and precedents cited, as to warrant the court in engrafting the limitation sought. The language of the statute seems to have been carefully chosen and used. The cases provided for were those in which there was an existing liability against a sheriff or high bailiff, and there is only one limitation in the section upon the right to the action therein provided, and that is the inability to make service on such sheriff or high bailiff, by reason of removal from the state. Whenever such liability and inability to make service concur, then the party is entitled to the action provided. “ Whenever ” is the word, and it covers all the time during which the liability of the sheriff should exist, and it looks directly to the act of making service of the process. If at any time during the existence of such liability, process cannot be served, by reason of the removal of the sheriff, then the action against the sureties may be had. ' The meaning is clear and explicit, and there is nothing in the chapter, or in other provisions of the law on this subject, that gives any just ground for supposing that the law makers intended differently from what the language imports. This being so, it is the province of the legislature, and not of the court, to give effect to reasons and considerations in favor of the proposed limitation. Without taking time in discussing other views presented against the efficacy of the motion in arrest, we think it was properly over-ruled. The judgment is affirmed.