State Treasurer v. Weeks

| Vt. | Feb 15, 1832

Hutchinson, C. J.,

pronounced the opinion of the Court.The plea of the statute of limitations, to which the plaintiff demurred, was overruled by the county court. The demand appeared to have lain sufficiently long to be barred, if comprised within the statute. But we consider the statute barring civil actions, applicable only to suits between individuals. The state is not named as being bound by it. The sections, which provide a bar to prosecutions for crimes, are made to bar the state, because the state is prosecutor. Certain qui tarn actions are barred by the first section of the statute, when sued by a common informer, to a given period ; and a longer time is given to the state, when no person appears to prosecute. This is all plain; and it appears reasonable to conclude, that the law makers, thus definite in so many cases, did no.tjntend to include the state and bar their rights, in eases not named at all; especially, wjhen it must have been well understood at the time of making this statute, what construction the English courts put upon statutes of similar import.

There having been a demurrer to this plea of the statute of limitations, the defendant’s counsel have gone back to the declaration, and urged several objections to its validity. 1st. That the law making power is therein termed, the legislature. This term is frequently used in common parlance, and once, if not more, in the constitution, to designate that body. We think this no good objection to the declaration. 2nd. The declaration sets forth an extent against Holmes for two distinct delinquencies, occurring in two different years. This objection is fortified by presenting the difficulties that would arise in casting the burthen upon the right persons among Holmes’ bail, bad the remedy been sought of them in any event. This, it is urged, rendered the extent against Holmes void, and his imprisonment illegal. But we find, on inspection of the declaration, that it describes the sum due from each constable with such particularity, that no more difficulty could arise, in the apportionment among bail, than if a suit were brought with two counts, in which the sheriff ought to be made good by different deputies. The true sum could be assertained as easily as in any other cases of apportionment. 3rd. It is objected, that the declaration does not allege, that the extent was signed. This is not inserted with entire particularity. The averment is, that the treasurer, on such a day,&tc., “ issued his extent in due form of law, dated,&c.” This is not sufficiently defective to be adjudged bad, unless on special demurrer. The defendant’s fourth objection to the declaration is, that it describes the extent against Holmes as having been directed and delivered to the defendant, as sheriff, when, by the statute, it ought to have been directed to the high bailiff, and delivered to him to serve. It is contended, that a precept, thus misdirected, gave the defendant no authority to hold Holmes a prisoner. The general statutes provide, that all precepts shall be directed to the sheriff or his deputy, &tc.; and wherever the sheriff is interested, or is a party to the suit, the precept shall be directed to the high bailiff. And, when the sheriffshall be in prison the high bailiff shall be keeper of the prison. The statute, regulating the treasury department, directs the treasurer to issue his extents against constables, and direct and deliver them to the sheriff ; and, when the sheriff has committed a neglect, and an extent issues against him, the treasurer shall direct and deliver that extent to the high bailiff; and fixes a penalty upon the high bailiff if he neglects his duty in the case. The letter of this last statute would seem to support this objection: but we perceive by the declaration that Holmes, though he was liable to an extent for a default committed while he was sheriff, yet he had ceased to be sheriff at the time when the extent issued against him. In all such cases, the object of the general laws can only be answered, by directing precepts to the sheriff, who is in office, against the man, who had before held the office. Otherwise, the sheriff and high bailiff might each become keeper in chief of the prison, when the bailiff should commit the former sheriff. This would present an absurdity, and a direct contradiction to that part of the statute, which makes the acting sheriff keeper of the jail unless he is himself in prison. The uniform and necessary practice has always been, to direct to the sheriff'all writs against his predecessor. The peculiar expressions of'this statute 'in the treasury department, are applicable to the cases where the sheriff, who neglects his duty, and becomes liable to an extent, remains sheriff when the extent issues against him. When a different case occurs, the general statutes may be applied to it. Such is the present case» The defendant was sheriff, and uninterested, when the extent came against Holmes, who was not sheriff, for aneglect of duty while he was sheriff. This objection is overruled

There yet remains a question, raised on the exception to the’ exclusion of evidence, offered by the defendant, to show the poverty of Holmes when he escaped. We consider the statute, giving this privilege to the sheriff, applies only to individual suitors, and not to the state. All the provisions for the privilege of the poor debtor’s oath ; the notice to the creditor, or his attorney, if living within the county; the necessity of the creditor’s appointing an agent in the county when he resides out of it; the legislature’s making a separate provision for debtors to the state ; these all indicate, that the provisions, now claimed under the statute, were-not intended to affect the state ; that the state was not thought of at all in this enactment. But this right of showing the poverty of the prisoner is a common law right. The state or any other suit- or, bringing an action upon the case, complains of an injury, arid-claims reasonable damages. And the defendant, in all such actions, has a right to prove what will convince, that the plaintiff has sustained less damages than he asks for. In the present case,, the plaintiff demands the whole sum, for which Holmes was imprisoned ; because he could not have been liberated from his imprisonment until he paid it. This hold upon him is lost by the-escape. The defendant says, the plaintiff’s right thus to hold his debtor in prison, was worth but little or nothing ; for he was so destitute of property that he could have paid nothing, had he continued in prison during life. This testimony ought to have been admitted, upon common law principles, and the plaintiff might show, in his turn, that Holmes was not thus destitute of property : then the jury might have'given the plaintiffsuch damages, as he had sustained by reason of the escape. Because this testimony was excluded by the county court, their judgement is reversed, and

A new trial is granted.