Edgerton v. Barrett , 21 Vt. 196 ( 1849 )

The opinion of the court was delivered by

Halu, J.

We have felt ourselves in duty bound to look into the plea in abatement with all the astuteness in our power, in search of formal defects, that might overthrow it; but, even with the aid of the very ingenious argument of the plaintiff’s counsel, we have been unable to find any flaw in it. In point of form we feel obliged to hold it to be invulnerable.

The question raised by the plea and replication is, whether a direction in the body of a justice writ to an indifferent person named, stating the reason-of such direction to be the want of a proper officer seasonably to be had, in the form of a deputation in a county court writ, authorizes such person to serve the justice writ. We are all agreed, that it does not; that the mode of authorization, mentioned in the chapter of the Revised Statutes on process, was designed to apply exclusively to writs returnable to the county court ; and that the form given in the justice writ was intended as the only mode of deputing a person to serve a justice writ.

The authorization in a county court writ is made by inserting the direction in the body of the writ, and its insertion requires no new signature of the authority issuing it. But the legislature, to guard more fully against the inconsiderate and unnecessary use of deputed persons in the service of justice writs, have made provision, by which the attention of the justice must be distinctly called to the necessity for such a service, by a separate indorsement of the authority upon the writ, over another new official signature. For this reason a form of authorization, requiring such signature, is given; and we think it was intended, that it should be strictly, or at least substantially, followed. We believe the practical construction of the justice’s act has been in conformity to these views ; and the judgment of the county court is therefore affirmed.