Franklin Johnson v. Martin C. Rice, 14 Vt. 391

The opinion of the court was delivered by Bennett, J. The statute requires, in case of a suit against a sheriff or' other officer for any ' default, neglect, or misconduct in their respective offices,’ that there shall be at least eighteen days notice before the session of the court to which the writ is made returnable, and this action is treated by the defendant, as an action of that description. But it is to be remarked that this is the common action of trover, and there is no pretence that the right of action arises out of any official neglect or misfeasance of the defendant.

None is alleged in the declaration, and none need be proved on trial. The plaintiff is a stranger to the process set up in the plea in abatement; and it would be difficult for me to see how he could call the officer to an account for his official conduct under a process in which he had no interest. The defendant is sued as an ordinary tort-feasor, and is liable as such, provided the property turns out on trial to belong to the plaintiff, and not to Brown. The plea is insufficient, upon the ground that this is not a case requiring more than twelve days notice.

The plea is obnoxious to other objections, but it is of no importance to consider them. The judgment of the county court is reversed, and judgment that the defendant answer over.