Kelly v. Paris

10 Vt. 261

• Court: Supreme Court of Vermont
• Decided: January 15, 1838
• Status: Published

Opinion

The opinion of the Court was delivered by

Redfield, J.

In this case, it is admitted that the plaintifl’s right to recover depends upon the validity of Isaac T. Paris’ authority to serve the writ in favor of the other defendant, against Hulet. If that authority was sufficient, defendants made the first legal attachment, and have the prior right, and unless the authority be so considered, they acquired no right, and the plaintiff’s attachment against the will of defendants is still good, and the defendants are liable in this action.

It is not pretended that the sufficiency of the authority has been determined by any adjudication upon a plea in abatement, but it is said the defect, if any, is only pleadable in abatement, and, unless taken advantage of in that manner, is waived. If it were a defect of a formal character in the •process, or in the return of the officer, it would be so considered. - But the defect here complained of is in the authority of the person attempting to execute the process.

The debtor, Hulet, even by omitting to plead in abatement, does not, it is conceived, so much concede the legality of the attachment, as he does waive all exceptions to the service, for the purposes of trial and judgment.

The question then recurs upon the sufficiency of the authority in this case. It has been repeatedly decided, that the magistrate, signing a writ, acts judicially in appointing an indifferent person to make service of the same. Beebe v. Steele, 2 Vt. R. 314. Ex parte Kellogg, ubi supra. Of course this authority cannot be delegated, and the determination of the magistrate is conclusive upon the matter. He must determine not only the fitness of the person, but the occasion, and the fitness of the person, with reference to the particular case. It might be very suitable to appoint a special officer at one time, and not so at another. A person who was suitable to serve one process, might be very unsuitable to serve another. A magistrate might as well leave the deputation blank as the writ. A person authorized to have the custody, and if one may be allowed so incongruous an association of ideas, to execute a blank writ, is not thereby authorized to execute the writ when filled. If so, it is the amanuensis and not the magistrate who confers the authority, and actually makes the appointment. The authority was clearly void, and the defendants, who attempted to act under it, trespassers.

The argument that the writ was sufficient on its face, and, by consequence, a sufficient protection to the officer, does not reach this case. The defect here is not in the process or in the power or jurisdiction of the court, but in the authority of the officer. Whether this authority is conferred by the legislature, by vote of the town, by general or special appointment, is not material. The officer must see to it that his authority is sufficient, and that his appointment is by the appropriate power, and in a legal mode. That he was imposed upon by false representations, either in writing, pr orally, and thereby induced to act in a capacity for which he had no authority, is no excuse to him, nor will it legalize an informal procedure.

Judgment is therefore affirmed.