43 Vt. 428 | Vt. | 1871
The opinion of the court was delivered by
The first question in this case arises upon the decision of the referee in admitting as evidence the records of the two judgments against Winchell, and Winchell and Van Guilder. In Blodgett v. Jordan, 6 Vt., 580, it was held that a certified copy of a record from a justice of the peace in New Hampshire was the appropriate evidence of a judgment rendered by him. And in Carpenter v. Pier, 80 Vt., 81, Aldis, J., says that this may be regarded as the settled law of the state. In Blodgett v. Jordan, it was conceded that the justice was de facto justice; and here the same fact was fully and properly proved by the,certificates of the clei’k of the county and the governor of the state. Justice courts in New York are not courts of record, and the above decisions are full authorities for the correctness of the decision of the referee upon this question. The copies of record having been properly admitted, renders it unnecessary for us to decide whether the justice’s docket was properly admitted or not. This evidence
It was claimed before the referee inasmuch as the constable, Wakeley, died before this suit was brought, that it could not be sustained against the town. The right of action accrued during the life-time of the constable, and we do not see how his deail could defeat or suspend it. The Gen. Sts., ch. 15, § 30, provide that towns shall be liable to make good all damages that shall come to any person by reason of the neglect or default of any constable of the town. The same chapter, in section 26, provides that constables, before entering upon the duties of their office, shall give bonds to the town in such sums and with such sureties as the selectmen may require, conditioned for the faithful performance of their duties. And there is a further provision which requires the constable to give an additional bond if the selectmen require it:—thus putting it in the power of towns to keep themselves fully secured against all claims that may be made upon them on account of the neglect or default of their constable. It cannot have been intended that the liability of the town should be dependent upon the life of the constable. His deail does not invalidate the securities which the town holds to secure the faithful performance of his duties, and any one claiming damages on account of his neglect or default, has a right of action against the town, and is not obliged to resort to the estate of the constable for indemnity.
The only remaining question is as to the liability of the town upon the facts found and reported by the referee. Did the constable exercise that diligence in endeavoring to serve the writs and make the attachments which the law required ? The referee has found that the constable, with due diligence, and such diligence as an officer is bound and required to perform and exercise in the service of writs of attaehment, could have found and attached the property. If the report had concluded here, this finding of the referee would have been regarded as conclusive upon this question. But he further reports the evidence upon which he found said facts, and submits the question to the determination of the court, whether he was justified in finding said facts or not.
The referee says that he intended to decide all questions and.
The judgment of the county court must be affirmed.