10 Vt. 261 | Vt. | 1838
The opinion of the Court was delivered by
In this case, it is admitted that the plaintifl’s right to recover depends upon the validity of Isaac T. Paris’ authority to serve the writ in favor of the other defendant, against Hulet. If that authority was sufficient, defen
It is not pretended that the sufficiency of the authority has been determined by any adjudication upon a plea in abatement, but it is said the defect, if any, is only pleadable in abatement, and, unless taken advantage of in that manner, is waived. If it were a defect of a formal character in the •process, or in the return of the officer, it would be so considered. - But the defect here complained of is in the authority of the person attempting to execute the process.
The debtor, Hulet, even by omitting to plead in abatement, does not, it is conceived, so much concede the legality of the attachment, as he does waive all exceptions to the service, for the purposes of trial and judgment.
The question then recurs upon the sufficiency of the authority in this case. It has been repeatedly decided, that the magistrate, signing a writ, acts judicially in appointing an indifferent person to make service of the same. Beebe v. Steele, 2 Vt. R. 314. Ex parte Kellogg, ubi supra. Of course this authority cannot be delegated, and the determination of the magistrate is conclusive upon the matter. He must determine not only the fitness of the person, but the occasion, and the fitness of the person, with reference to the particular case. It might be very suitable to appoint a special officer at one time, and not so at another. A person who was suitable to serve one process, might be very unsuitable to serve another. A magistrate might as well leave the deputation blank as the writ. A person authorized to have the custody, and if one may be allowed so incongruous an association of ideas, to execute a blank writ, is not thereby authorized to execute the writ when filled. If so, it is the amanuensis and not the magistrate who confers the authority, and actually makes the appointment. The authority was clearly void, and the defendants, who attempted to act under it, trespassers.
The argument that the writ was sufficient on its face, and, by consequence, a sufficient protection to the officer, does not reach this case. The defect here is not in the process
Judgment is therefore affirmed.