Pierce v. Butler , 16 Vt. 101 ( 1844 )

The opinion of the court was delivered by

Hebard, J.

The questions in this case arise upon the sufficiency, or insufficiency, of the defendant’s plea. There is a general demurrer to the plea, and we are, therefore, for the present purpose, to regard all the facts, therein alleged, as proved.

The plea, in substance, alleges that the overseer of the poor of Burlington is prosecuting for the town of Burlington, and that the justice, who issued the warrant, and took the recognizance, was the lawfully appointed agent of said town of Burlington, to prosecute and defend suits in which the said town was interested, and a lawful inhabitant and citizen of said town of Burlington.

The provisions of the statute are, that “No justice shall take cognizance of any cause, or take confession of any debt, or do any judicial act, when he shall be related within the fourth degree of affinity or consanguinity to either party in such matter, or shall have been of counsel, or shall be directly or indirectly interested in such cause or matter.” Rev. St. c. 26, § 10.

The first question to be determined, if that became necessary, would be, whether the act which the justice had to perform was, in its character, “judicial.” The justice receives the complaint of the woman, and administers the oath, but exercises no discretion in doing so, and is not entrusted with the exercise of any discretion. He issues his warrant, and, when the respondent is brought before him, he takes a recognizance for his appearance at the county court; but these acts are as much a matter of form, and as ministerial in their character, as the signing a writ, and taking recognizance for costs of prosecution in any other case. And the law upon the point seems to be settled by the case of Graham v. Todd, 9 Vt. 166.

In prosecutions for bastardy, it is said that the justice is required, to exercise some judgment in relation to the amount of the recognizance, and the sufficiency of the sureties that are offered. But the same may be said in any other case, in which a recognizance is to be taken. But, as we dispose of the case upon other grounds, it becomes unnecessary to decide this point.

If the duties, which the justice had to perform, were judicial in their character, then we are to inquire whether, within the intent and meaning of the law, the plea alleges that he had been “ of counsel in the case.”

Upon pleas in abatement courts do not usually put any forced construction, nor give any overstrained meaning to words, to favor the plea; and therefore we are not called upon, in trying a demurrer to such plea, to take judicial notice that the justice is a counsellor in fact, as a postulate from which to draw the conclusion that he had “ been of counsel ” in this case, when the plea alleges neither of those facts. The plea merely alleges that the justice was the lawfully appointed agent of the town of Burlington to prosecute and defend suits. But that does not imply that he exercised any of the duties appertaining to the office of counsellor in this case, nor that he acted, in this case, in the capacity of agent. Although it might be true that this is one of the class of cases that the town anticipated might arise, when making him their agent, still it would not follow that he ever acted in that capacity; and, without an allegation to that effect, we should not be at liberty so to regard it.

The other question grows out of the supposed interest that the justice has in the matter. If this prosecution was instituted and carried on at the expense of the town, and for their benefit, every inhabitant of the town, who has a list in town upon which he is' subject to the payment of taxes, is interested. But, in the absence of any allegation to that effect in the plea, we shall not presume that the justice, because he is an inhabitant of the town, therefore is liablé to pay taxes ; for there are various ways in which a “ lawful citizen and inhabitant” of a town may be excused from the burthen of paying taxes. By demurring to this plea the plaintiff has admitted the facts therein stated, and not those which are omitted ; and, there being in the plea, no allegation of interest on the part of the justice, we are not at liberty to infer the fact from what is there stated.

The judgment of the county court is affirmed.