Martin v. Town of Wells , 43 Vt. 428 ( 1871 )

The opinion of the court was delivered by

Royce, J.

The first question in this case arises upon the decision of the referee in admitting as evidence the records of the two judgments against Winchell, and Winchell and Van Guilder. In Blodgett v. Jordan, 6 Vt., 580, it was held that a certified copy of a record from a justice of the peace in New Hampshire was the appropriate evidence of a judgment rendered by him. And in Carpenter v. Pier, 80 Vt., 81, Aldis, J., says that this may be regarded as the settled law of the state. In Blodgett v. Jordan, it was conceded that the justice was de facto justice; and here the same fact was fully and properly proved by the,certificates of the clei’k of the county and the governor of the state. Justice courts in New York are not courts of record, and the above decisions are full authorities for the correctness of the decision of the referee upon this question. The copies of record having been properly admitted, renders it unnecessary for us to decide whether the justice’s docket was properly admitted or not. This evidence was merely cumulative, and showed just what was proven by the copies of record, and no more.

It was claimed before the referee inasmuch as the constable, Wakeley, died before this suit was brought, that it could not be sustained against the town. The right of action accrued during the life-time of the constable, and we do not see how his deail could defeat or suspend it. The Gen. Sts., ch. 15, § 30, provide that towns shall be liable to make good all damages that shall come to any person by reason of the neglect or default of any constable of the town. The same chapter, in section 26, provides that constables, before entering upon the duties of their office, shall give bonds to the town in such sums and with such sureties as the selectmen may require, conditioned for the faithful performance of their duties. And there is a further provision which requires the constable to give an additional bond if the selectmen require it:—thus putting it in the power of towns to keep themselves fully secured against all claims that may be made upon them on account of the neglect or default of their constable. It cannot have been intended that the liability of the town should be dependent upon the life of the constable. His deail does not invalidate the securities which the town holds to secure the faithful performance of his duties, and any one claiming damages on account of his neglect or default, has a right of action against the town, and is not obliged to resort to the estate of the constable for indemnity.

The only remaining question is as to the liability of the town upon the facts found and reported by the referee. Did the constable exercise that diligence in endeavoring to serve the writs and make the attachments which the law required ? The referee has found that the constable, with due diligence, and such diligence as an officer is bound and required to perform and exercise in the service of writs of attaehment, could have found and attached the property. If the report had concluded here, this finding of the referee would have been regarded as conclusive upon this question. But he further reports the evidence upon which he found said facts, and submits the question to the determination of the court, whether he was justified in finding said facts or not.

The referee says that he intended to decide all questions and. points on the trial before him according to law. And it was held in Johns v. Stevens, 3 Vt., 308, that where a referee in his report stated the facts and grounds on which he founded his decision, and it appeared that he intended to follow the law and decide on the legal rights of the parties, the question of law arising upon the facts reported was properly before the court, and subject to revision. In Bliss v. Rollins, 6 Vt., 529, Williams, Ch. J., explains or qualifies the .above rule by saying that when referees intend to follow the law, and on a doubtful point make a mistake, yet this is not always a reason for setting aside their report, unless the mistake evidently led them to a wrong conclusion on the whole case. The same rule was applied in Larnerd v. Bellows, 8 Vt., 79, and Eddy v. Sprague, 10 do., 216. The above cases are cited more to show the inclination of the courts to make every reasonable intendment in support' of reports of referees, than for their direct applicability to any question arising in this case ; for we are unable to see in what particular the referee undertook to follow the law, and so mistook it that he thereby came to a wrong conclusion upon the whole case. And inasmuch as the proceedings of referees are presumed to be correct, in Hogaboom v. Herrick, 4 Vt., 131, Stevens v. Pearson, 5 do., 503, Bliss v. Rollins, 6 do., 529, and Larnerd v. Bellows, 8 do., 79, the burden is upon the party seeking to set them aside to show that some error has intervened. We are to presume that the referee adopted the correct legal rule as to the degree of diligence required of the officer, and whether he exercised such diligence was a question of fact for the referee to determine. The report of referees upon questions of fact submitted to them must ordinarily be held as conclusive. These tribunals are selected by the parties, and unless it is made to appear that they have violated known and acknowledged principles of justice, the parties should be compelled to abide the result of their action. Reports of referees have been properly likened to awards of arbitrators, and it was decided in Vanderwerker et al. v. Vt. Central R. R., 27 Vt., 130, that a mistake in matter of fact, in misjudging evidence, or contracts, or admissions of parties, would not invalidate an award, unless the arbitrator was misled and deluded and so far misapprehended the case that he failed to exercise his real judgment upon it. The most that can be claimed here is that the referee erred in judgment. We do not find evidence in the report that would warrant us in the conclusion that he committed any error. He was in a position to properly judge of the evidence and circumstances which were brought before him, and by disregarding his findings we should open the case without any satisfactory evidence that the result would or ought to be different from that anfived at by him.

The judgment of the county court must be affirmed.