Johnson v. Nash
Supreme Court of Vermont
Assumpsit. The original writ, which was made returnable to the county court, was served by attaching the property of the defendant, and was signed “ E. A. Stansbury, Dep. Clerk,” and in no. other manner. The defendant pleaded in abatement, that Stansbury, at the time of the issuing and service of the writ, was not a deputy clerk of Chittenden county court.
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Assumpsit. The original writ, which was made returnable to the county court, was served by attaching the property of the defendant, and was signed “ E. A. Stansbury, Dep. Clerk,” and in no. other manner. The defendant pleaded in abatement, that Stansbury, at the time of the issuing and service of the writ, was not a deputy clerk of Chittenden county court. The plaintiff then moved for leave to amend the writ by allowing Stansbury to come into court and annex to his signature the word “Clerk.” And it was shown to the court, that Stansbury was in fact clerk, at the time of the issuing and…
1Opinion of the Court
The opinion of the court was delivered by
Royce, Ch. J.
This was not a case, where the writ was apparently irregular and void; for a deputy clerk has authority to sign writs. The amendment was but the substitution of one name of office for another, when an officer of either name might legally do the same official act.
An averment de hors the process was therefore necessary, to impeach its apparent validity. And the allegation was accordingly made by the plea in abatement, that Mr. Stansbury was not deputy clerk. But he in fact sustained the office of clerk, which comprehended all the powers of a…
2Cited by3 opinions
- Rich v. SowlesSupreme Court of Vermont · 1892
- Town of Corinth v. LockeSupreme Court of Vermont · 1890
- Jones v. LavanwaySupreme Court of Vermont · 1963