Ingraham v. Leland

19 Vt. 304 | Vt. | 1847

The opinion of the court was delivered by

Davis, J.

This action was originally commenced to the county court at the November Term, 1844. The writ was signed by I. B. Person, Justice of the Peace, and was directed in the usual 'form to Silas Bruce, Jr., an indifferent person, to serve and return, for the want of a proper officer seasonably to be had, and was served by him on the defendants, by attaching certain personal and real estate. The names of Stoughton & Person, attorneys, were endorsed on the back of the writ, as attorneys for the plaintiffs. The defendant, at the first term of the court at which the action was entered, filed a plea in abatement, averring the facts above stated as to the direction and service of the writ. To this plea the plaintiffs demurred ; and the only question in the case is, whether an attorney in the suit, being a justice of the peace, had authority to direct it to an indifferent person; for if he had not, it was not legally served, and the process would abate for that cause.

The words of the statute, on which the defendant relies, so far as material to this question, are, “ No justice shall take cognizance of any cause, or do any judicial act, where he shall have been of counsel in such cause, or matter.” Is the official act of deciding whether, or not, a proper officer can be seasonably had to serve the process, and giving authority to some person, not a public officer, to serve it, if the fact be found negatively, a judicial act, within the true intent and meaning of the statute? We have no doubt it is so. Indeed, this point, has been several times expressly decided by this court. Kellogg ex parte, 6 Vt. 509.

Does, then, the justice, whose name, in connection with that of his partner, Stoughton, appears endorsed on the writ as attorney, stand in the predicament of having been of counsel in the cause, within the meaning of the statute ? Of this there seems as little room to doubt.

There is no distinction here between being counsel and attorney in a cause. Our statute attaches the same meaning to the phrase “ being of counsel,” which popular usage attaches to it, that of being concerned in a cause, or having charge of it as attorney. It was sufficient, therefore, to allege in the plea, that the magistrate was an attorney of record; it is equivalent to saying he was of counsel.

It is farther insisted, in support of the demurrer, that the plea is defective, in not negativing the fact of the writ having been served by some other person. And the case of Pearson v. French, 9 Vt. 349, is referred to, in support of this objection. It will b.e found, however, that the cases are clearly distinguishable. Here, the writ and return are referred to in the plea; in that case they were not. One, among many other objections to that plea, was, that it insisted on certain defects in the copy of the writ left with the defendant, but contained no averment, that the defective copy was the only one left, and none that it was not served in any other manner. Those were matters that might, perhaps, be well presumed to exist, and therefore ought to have been negatived. Here the objection is to the legal competency of the person, to whom the writ was directed, to serve it. It was not necessary to negative the service by any other person.

The plea in this case relies wholly upon the adjudication of the magistrate, as to the fact of a regular officer being seasonably to be had, and the consequent official direction to Bruce, as an indifferent person. Had it brought into view the fact of signing the writ and taking a recognizance for costs, there is, I apprehend, no reason to doubt, that these acts are equally within the prohibition of - the statute in question, and would have been followed by the same consequences.

The judgment of the county court is affirmed.