Hosford v. Allen , 1 Vt. 50 ( 1827 )

Royce, J.

delivered the opinion of the court. The words for

which this action is brought do not speak of the plaintiff expressly as deputy sheriff, or with the addition or address of any official character. The plaintiff however assumes, that in taking charge of and attending upon the jury he did act in his capacity of deputy sheriff, and therefore that the words complained, of, being spoken 0f him in relation to his conduct on that occasion, do necessarily convey an imputation a-gaingt him in his official capacity aforesaid. He has accordingly proceeded on the ground that the words are actionable only in respect of his said office, and consequently that if they do not charge . him with misconduct in that office, the present action will not lie. The inference which the plaintiff draws, that if he was acting at the time as deputy sheriff, the words complained of must be taken to speak of him in that character, is undoubtedly just; but if he was not so acting, there is no pretence to say that the defendant , intended to speak of him otherwise than as the officer attending on the jury. The whole question therefore is, -whether the plaintiff was then acting as deputy sheriff. It is no doubt true that while ,the plaintiff was attending the justice court for general purposes as a peace officer he continued to act in the capacity of deputy sheriff. His office conferred all the authority requisite for any such pur- , pose, as also for the purpose .of holding any person in custody be- : fore that court, had such an act become necessary. But these general powers did not extend to the impanneling and taking private charge of the jury. The first duty is imposed by statute . upon the constable of the town, and in case of his absence or disqualification, upon a person especially appointed by the justice.— As the jury is to consist of freeholders and men who stand indifferent between the parties, the reason of this regulation is suf- ¡ ficiently manifest. For the last duty an appointment by the,justice and a special oath are made necessary; and we think that the - authority and powers of the plaintiff, while having the jury under his private charge, were to be predicated of his appointment and oath for that particular purpose, and not of his general office as deputy sheriff. So the plaintiff can take nothing by his motion.

Williams, for the plaintiff. Langdon and Kellogg, for the defendant.

Williams then moved for liberty to amend his declaration, which was granted.