State v. Drew

51 Vt. 56 | Vt. | 1878

The opinion of the court was delivered by

Royce, J.

The complaint upon which the respondent was prosecuted was written by H. W. Lyford while he was a legal deputy sheriff within and for the County of Washington, and discharging the duties of said office. The respondent moved to dismiss the complaint, and the case comes here on exceptions to the pro forma ruling of the court, overruling the motion.

Section 26, c. 12, of the Gen. Sts. provides that “ no sheriff or deputy sheriff shall be allowed to make any writ, declaration, complaint, or other precept or process, or draw or make any plea, except in his own case; and all such acts shall be void,and such writ, declaration, complaint, or other process, shall be dismissed.”

This statute has been construed in Winchell v. Pond, 19 Vt. 198; Hunt v. Viall, 20 Vt. 291; and Walworth v. Farwell, 41 Vt. 212. And the conclusions arrived at in those cases are decisive of the question here made, unless the fact that Lyford wrote the complaint at the request of the town grand juror changes the relation of Lyford to the complaint, and makes the act of making the complaint, in legal effect, the act of the grand juror. In the case of Winchell v. Pond, before cited, the writ was filled out by the constable, at the request of the attorney for the plaintiff, and under his supervision ; and the court held that the writ .was made by the constable, and on motion it was dismissed for that reason. The word make, as it is used in the statute, means, to form, or compose ; and the manual act of writing out a complaint, even though by the dictation of another, by a sheriff or deputy sheriff, is prohibited by the statute. To hold otherwise, would, by judicial construction, defeat the object and intent of the statute, as shown by the reasoning of the court in the cases before cited.

Exceptions'sustained, and complaint dismissed.