Town of Charleston v. Town of Lunenburgh , 21 Vt. 488 ( 1849 )

The opinion of the court was delivered by

Poland, J.

The question presented by the pleadings in this case is, whether a writ against a town (in case the town clerk is absent from the state) should be served by delivering a copy to the assistant town clerk, or with one of the selectmen, or other principal officers of the corporation. In this case the writ was served, in the absence of the town clerk, by giving a copy to one of the selectmen of Lunenburgh; and the ground, upon which the abate-' ment is claimed, is, that it should have been delivered to the assistant town clerk.

The statute, — Rev. St. 181, sec. 14, — in reference to the service of writs upon corporations, requires the copy to be left with the cleric, unless absent from the state, and in such case that the copy shall be left with some one of the principal officers of the corporation. It is claimed, however, by the defendants, that the term “ cleric,” in the cases of town clerks, includes also the assistant clerk, which each town clerk is authorized to appoint. But we think not. The assistant town clerk is not an officer of the town, in any sense; he is appointed, not by the town, but by the town clerk, movable at his pleasure, and the town clerk is responsible for all his acts. He is, in fact, the mere clerk, or servant, of the town clerk. We think a minor, or other person not eligible to the office of town clerk, might well be appointed assistant clerk, and might legally perform all the duties required of such assistant. The service of the writ, in this case, was strictly in conformity to the statute, and we think the replication to the plea in abatement was a sufficient answer to it.

The judgment of the county court is therefore reversed, and judgment is to be entered, that the plaintiffs’ replication to the' defendants’ plea in abatement is sufficient, and that the defendants answer over to the plaintiffs’ declaration; and the cause is remanded to the county court for farther proceedings.