Butler v. Lowry , 3 Vt. 14 ( 1830 )

The opinion of the Court was pronounced by

Paddock, J.

The 24th section of the act regulating judicial proceedings, passed March 2d, 1797,among other things,provides, “ that every writ or process issuing against any sheriff, deputy- “ sheriff,high baliff or constable, for non-feasance, mal-feasance or “ mis-feasance, in their respective offices, shall be served at least “ eighteen days before the session of the court to which the same “ is made returnable.

The justice act (so called) which was passed the 4th March, 1797, directs, “that every writ of summons, or attachment, shall be served at least six days before the time therein appointed for trial.” And the question submitted is, whether a writ against a sheriff for eglect of duty, returnable before a justice of tbe peace, must be served at least eighteen days before the time therein set for trial, as required in the judiciary act; or six days, according to the justice act. The words every writ and process are as general and comprehensive as language can well be, and are not controuled by jurisdiction, but must apply to all writs returnable to any court in the state, unless qualified or restrained by some provision in a subsequent statute. It is contended that the justice act does controul this provision, so far as it respects writs returnable before a justice of the peace. But statutes are to have such a construction given them as that they may all stand, if consistent; always bearing in mind the evil to be remedied by,and object of the legislature in, passing them. It is evident, then, that the reason, why a sheriff by the judiciary act is entitled to six days more notice than other suitors, is, because he is liable to be sued for the neglect of his deputies; and not being supposed to have a particular knowledge of such deputy’s business, he must either give the deputy notice of the suit, or undertake himself a defence of which he had no previous knowledge ; and in either case, it would be reasonable that he should have a longer notice than would be necessary in his own private concerns j and certainly there is the same necessity of his having extra notice before a justice of the peace, that there is before the county court: more especially as the jurisdiction of justices embraces three times the amount now that it did when the act was passed. The necessity, then, existing, we will see if the tw.o statutes may be so construed as to have no discrepancy. The justice act says, “ that every writ of summons or attachment shallbe served at least six days before the time therein set for trial.” Suppose a writ against a sheriff, for neglect of duty, is returned on the day of court, having been served eighteen days previous : it admits no argument to shew, being self evident, that it has been served according to the justice act; and it is equally evident that the requisition of the judiciary act is complied with, there .having been eighteen days notice ; and that eighteen days notice is given is not inconsistent with either. The conclusion then is, that the provision in the judiciary act so far governs, or is to be so taken in connection with the justice act, as that a sheriff, his deputy, or constable, when sued for neglect of his official duty, must have eighteen days notice.

Porter, for plaintiff. Adams, for defendant.

Therefore, the plea in abatement must prevail.

Judgment that the writ abate.