Carr v. Tyler , 28 Vt. 783 ( 1856 )

The opinion of the court was delivered, at the circuit session in September, by

Redeield, Ch. J.

The only question attempted to be raised in this case, as we understand the pleadings, is whether the authorization, by a justice of the peace, of an indifferent person to serve and return a writ before such magistrate, is functus officio when the time of service expires, or may be revived by extending the return day of the writ without the concurrence of the magistrate. At first we were inclined to say the authority to serve the writ, was revived by the alteration of the return day of the writ. It has been held that such alteration is not the making of a new writ, within the statute prohibiting sheriffs from malting writs ; and such a writ, altered from one originally made returnable at a different day, is not to be regarded as a writ signed in blank.

But still we are satisfied that if the ground of argument assumed in Kelly, v. Paris, 10 Vt. 261, is sound, that the justice must determine the “ occasion” for appointing a special officer to serve the writ, then the authority should be regarded as expiring with the time within which the writ might be served, as originally issued. For although the fitness of the person to serve the process is determined, with reference to the action, the parties, and all other incidents, absolutely, still the necessity of such an officer being appointed upon the occasion or emergency is only determined up to the time limited in the writ for service. Beyond that, the justice has not adjudged the necessity of any such appointment. And if the mere alteration of the return day of the writ is to determine the extension of this necessity to all after time, one very essential element in the discretion is chiefly taken from the justice.

That the occasion for the particular appointment was regarded as a very important point in the exercise of the discretion by the magistrate, will be apparent from an examination of the statute, conferring the authority. It is in these words “Whenever it shall be made to appear to a justice that any precept returnable to him may fail of service, for the want of a proper officer, seasonably to be had, he may authorize, &c. And the very casus agendi, or contingency in which he may act, is made to depend upon its being shown that the precept may fail of service by reason of no officer being seasonably to be had. And although it is, no doubt, a question resting absolutely in the discretion of the justice when the contingency does occur, it is certainly most unsound to infer that because he determines the contingency, upon one state of facts, up to a certain time, that any one, at will, may extend it indefinite ly. Such a construction seems to us directly at variance with the language and the purpose of the statute.

Judgment affirmed.