22 Vt. 211 | Vt. | 1850
The opinion of the court was delivered by
The first question in this case is, whether an infant is a competent person to be deputed, by the authority ‘signing a writ, to serve it ? It is certain, that such person is not competent to perform any judicial office, which it might sometimes be necessary for him, in such case, to do. It is clear, too, I suppose, that such person is not liable to the defendant for any injury he might sustain, either for misfeasance, or nonfeasance, for a false return, or for not keeping the property with care, or for refusing to take bail, &c. In such a case he has no principal to be made liable for his default in these particulars. Hence, although we are aware, that such a practice may, to some extent, have prevailed in the state,
The form of the plea is good. It is alleged, that it was served by a person, naming him, who was an infant, without this, that it was served by any other one, or in any other manner. This is equivalent to denying, that there was any other service. This makes it unnecessary to inquire into any other part of the case.
I should myself have preferred to hold it within the discretion of the justice, whether, or not, he would appoint an infant to serve a writ. Knowing very well, that, in practice, such an extension would not be attended with any serious evil consequences, and believing, that the difference between a service, made by an infant, when specially deputed by the sheriff, — which this court have held sufficient, — and by the authority signing the writ, is really one of form, more than of substance, and one which common minds, and the unprofessional, will fail fully to appreciate, I should greatly have preferred, that both questions should have received the same determination ; but I am not insensible to the force of the technical reasoning, which is deemed invincible by my brethren.
Judgment reversed, and judgment that the writ abate.
