McK Ormsby v. Morris , 28 Vt. 711 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

The county court were correct in not dismissing the cause for want of jurisdiction. The action sounds in tort, the damages are laid at $200, and the recovery was, in fact, for more than $100, including the interest on the execution.

But a more important inquiry arises On the sufficiency of the declaration. To sustain this action for the neglect of the officer in not keeping this property so that it could be levied upon, it is necessary that the property should be charged in execution Within thirty days from the time of final judgment. This, from the declaration, does not appear to have been done. All that is alleged is, that the court, when the judgment was rendered, sit on the 23d day of March, 1852, that execution was taken out bearing date the 29th of March, 1852, and that the officer demanded the property of the defendant on the 26th day of April, 1852, and there is no averment that this was within thirty days from the time of the rendition of the judgment, and no averment of the day on which the court adjourned. It may have been in session but for a single day. The fact that the execution bears date the 29th of March, 1852, is no evidence of the time the court adjourned.

It cannot be intended, that it issued at the earliest period at which the plaintiff was entitled to take his execution. If the statute had fixed the day for the ending of the term, as well as the day for the beginning, we might, perhaps, take judicial notice, of the day when the court adjourned, and, in this w-ay, save the declaration, but as the ending of the term is not fixed by law, its termination must be matter of averment and proof \

Judgment of the county court is reversed, and judgment that the declaration is insufficient.

The plaintiff had liberty to amend on the usual terms.