Dolbear v. Town of Hancock

Tire opinion of the court was delivered by Royce, Ch. J. This case is presented on exceptions taken in the county' court in reference to a plea in abatement. The ground of the plea was, that the writ was served by a person possessing no authority to make the service, either as a public officer, or by special appointment. The direction was to any sheriff or constable, &c., “or to E. K. Gladding, constable of Granville.” The plaintiff moved, that the magistrate, who signed the writ, should be permitted to insert the statute grounds for making a special direction of the writ, and also for selecting the person named. This was permitted by the court; and the ground of abatement was treated as being thereby removed. To this course the defendants excepted; and they still insist upon their plea. The sole question is, whether the court erred, in attempting to cure the defect in the manner stated. It is needless to say, that the affidavit of the magistrate, that he omitted the requisite matter by mistake, should have no influence on the question. The case seems to have little analogy to that of Chadwick v. Divoll, 12 Vt. 499, where the writ was served by a public officer, to whom it had not- been previously directed. To render that case an authority for this, it should have appeared, not only that the court allowed a direction to the officer to be inserted in the writ after service made, but that the officer was appointed to his office after he had attempted to serve the writ. Here there was [392] neither a general nor special authority, when the pretended service was made; and without a judicial act of the magistrate no authority could be conferred. Kellogg, ex parte, 6 Vt. 509. Kelly v. Paris, 10 Vt. 261. But it was too late for the exercise of judicial power, by the magistrate, when this amendment took place. We can only regard the service as entirely void; and hence no amendment could make it good. Judgment reversed, and judgment that the writ abate.