Bank of Rutland v. Parsons , 21 Vt. 199 ( 1849 )

The opinion of the court was delivered by

Bennett, J.

This is an action on the case against the defendant, as sheriff of the county of Rutland, to'recover damages for his neglect of official duty, in not collecting an execution against Rogers and Dexter. The defendant long before and at the time he received the execution, and long afterwards, was a stockholder in the Bank of Rutland. The statute enacts, that, in all cases, in which the sheriff is a party, in name, or as a member of a private corporation, the high bailiff may serve the writ; and it expressly enacts, that the sheriff shall not, in such case, serve the writ. Although the statute uses the expression “ the writ,” yet we must regard this as a generic term, including as well a writ of execution, as a writ of attachment.

The ministerial power to serve a legal process must be conferred in every case, either mediately, or immediately, by virtue of some statute. The statute, in the case before us, not only omitted to confer the power upon the sheriff, but expressly incapacitates him to serve the writ. It is Said in argument, that the statute is only directory, but we think it is prohibitory, as well as directory, and prohibitory, too, in an eminent degree. It is not claimed, that the sheriff could have any common law power; and it cannot well be seen, how a statute, denying the power, can be construed into one giving the power. If he had no official power to serve the writ of execution, how can he be guilty of official neglect, in not serving it ?

It may be regarded as a general principle, that, when a statute prohibits any thing to be done, an act done in contravention of the prohibition must be adjudged inoperative and void, if the statute cannot be otherwise made effectual to accomplish the object intended by its enactment. The case of Nelson v. Denison, 17 Vt. 73, was decided upon this principle. In that case the officer served a justice writ more than sixty days previous to the time set in it for trial, against the prohibition of the statute ; and it was held, that the officer was not justified by the statute, and that he acquired no lien upon the property attached, as against an officer who subsequently took the property from him on a regular execution, although the debtor-did not appear at the return day of the writ and object to the irregularity of the service. It would seem, upon the principles of that case, that the debtor might have had his action of trespass against the officer, unless precluded by his not appearing and objecting to the service, at the return day of the writ. To hold, that the sheriff could serve this writ of execution, would be to render the statute ineffectual and inoperative. No opportunity could.be given to abate the process, and trespass should be maintainable against the officer.. The officer had no authority to serve the process; and consequently his acts must be void. The defendant might have refused to have received the execution, and not have subjected himself to an action. His having received it cannot give him power to serve it, and save himself from an action. In Dolbear v. Hancock, 19 Vt. 388, the service was held void on account of the imperfect direction to a person deputed to serve the writ. The deputation conferred no power.

It is claimed, that, as the defendant served the writ of attachment without objection, took a receiptor, and pursued him to judgment, he is bound to go on and execute the final process, which was put into his hands by the bank. But we think this cannot alter the ‘case, pr clothe the defendant with official power; and without official power to perform an act, he cannot be guilty of official neglect for not doing it, It is said, that the defendant should be estopped from averring his want of power, inasmuch as he served the writ of attachment without objection, and took a receiptor for the property attached; but we know of no doctrine of estoppels, that can apply to such a case as this. We think it more reasonable, to hold the statute, which prohibits the defendant from executing this writ of execution, to be an estoppel upon the sheriff, though he disregarded its injunctions, in serving the original writ.

The result is, the judgment of the county court is reversed;— and, by consent, judgment is rendered for the defendant to recover his costs.