20 Vt. 40 | Vt. | 1847
The opinion of the court was delivered by
This was not a case, where the writ was apparently irregular and void; for a deputy clerk has authority to sign writs. The amendment was but the substitution of one name of office for another, when an officer of either name might legally do the same official act.
An averment de hors the process was therefore necessary, to impeach its apparent validity. And the allegation was accordingly made by the plea in abatement, that Mr. Stansbury was not deputy clerk. But he in fact sustained the office of clerk, which comprehended all the powers of a deputy. The right name was therefore signed, and the authority of clerk appeared to attend it; for a deputy’s powers are those of the principal. But the authority appeared to be delegated, when in truth it was original. It was a case where Mr. Stansbury misdescribed the capacity in which he exercised the powers of clerk. And the amendment merely sought to correct that misdescription, without supplying any authority not already apparent upon the writ. We think the county court were warranted in treating the form of signature as a mere misprision or mistake of their own officer, and permitting it to be amended.
Judgment of county court affirmed.
