49 Vt. 176 | Vt. | 1876
The opinion of the court was delivered by
The plea in abatement, whether good or bad as such a plea, or as a motion to dismiss, was clearly out of time, and was properly overruled. And it may well be questioned whether this writ was not properly brought in the respect aimed at by the plea, notwithstanding the usual practice in this state to sue towns, and sue for them, by the name of the towns only, instead of in the name of the inhabitants of the towns, as was done in this case. In England, the practice from the early times was, to describe those inhabitants liable to be called on to respond to the judgment in suits against counties, boroughs, and hundreds, and such communities. In 1 Lili. Ent. 294, there is a precedent given, which is Croxall et als. v. The Inhabitants of the Hundred of Hemlingford. In 2 Saund. 374, is Pinkney v. The Inhabitants of East Hundred in the County of Rutland. The leading case in which it was held that at common law an action would not lie against a county for an injury in consequence of the county’s bridge being out of repair, was Russell et als. v. The Men Dwelling in the County of Devon, 2 T. R. 667. The statute of Massachusetts on this subject is, “ Towns may, in their corporate capacity, sue and be sued
II. The statute, Gen. Sts c. 15, s. 30, provides that towns “ shall be liable to make good all damages which shall accrue to any person by reason of the neglect or default ” of their constables. This means official, and not individual, default or neglect. In this case, the defendant’s constable had the money received for property sold on the writ in favor of the plaintiff against Barnes, in his hands in his official capacity. His official duty was to hold the money till that suit should be terminated, and then, if the plaintiff got judgment and charged it in execution, to apply it on the execution, and if the plaintiff failed in either, to pay it over to Barnes. Gen. Sts. c. 83, ss. 39, 94. The plaintiff did fail to get judgment, whereupon it became the official duty of the constable to pay the money to Barnes. Barnes directed him to
Judgment affirmed.