Roswell Barber v. Town of Benson, 9 Vt. 171

The opinion of the court was delivered by Collamer, J. This action cannot be sustained against the town, unless an action could bo sustained against the constable, for the same official act or neglect alleged. The plaintiff claims to recover the damages he has suffered from the constable having neglected to levy, collect and return a certain execution. The court below correctly declined receiving from the plaintiff testimony, tending, not to support, but to falsify his declaration, showing that the constable did actually levy and collect the execution, but was guilty of another neglect, not declared on.

It appeared on the trial, that the execution, delivered to the constable, described a judgment rendered on the 14th day of June, 1834, when, in fact, no judgment was rendered on that day. A judgment of June 13th ,no more sustains or justifies the execution, than a judgment of another year, or sum; as the creditor might immediately, or at any time, take out and enforce a correct execution on that.

This cause is, then, to be treated in the same manner, as if this execution had issued without a judgment. in an action against an officer, and, of course, in an action against the town, for his neglect, the plaintiff must allege and prove the judgment, and the issuing of the execution upon that judgment. The execution is no evidence of the judgment, except between the parties thereto, and, of course, is not conclusive, when produced. This was settled in Ackworth v. Kemp, Doug. 40. In this case, the plaintiff was bound to prove both these allegations, and the defendant was at liberty to disprove either of them.

As they were not true, the plaintiff could not recover. This was an execution issuing from an officer, having competent authority and jurisdiction to issue such precepts, and, being good on the face of it, would have been sufficient to justify the officer in executing it, but it would have been trespass in the plaintiff. It was an execution without a judgment, and would have been no justification to the plaintiff. The question, then, is this ; as this precept would have protected the officer, was he bound to execute it ?

Had the debtor been committed to jail, and a jail bond been taken, it could not have been enforced. Sherwin & Vaughan, v. Bliss, 4 Vt. Rep. 96. Stillman, Wells & Co. v. Barney, 4 Vt. Rep. 187. Had the property of the debtor been taken in execution, it would have been trespass in the plaintiff The plaintiff ought not to complain that the officer neglected to render the plaintiff a trespasser, nor can he say he has been injured by such neglect. This same question was decided in this court in Hill v. Wait, 5 Vt. Rep. 124. Judgment Affirmed.