Barber v. Town of Benson
Supreme Court of Vermont
This was an action against the town of Benson, for the neglect of its constable, in his official duty. The declaration alleged, that the plaintiff recovered a judgment, before a justice, on the 13th day of June, 1834, and on the 14th took out execution thereon, of that date, and delivered it to the constable, to levy, collect, and return, but that he wholly neglected either to levy, collect, or return the same, and it remains wholly unpaid to the plaintiff.
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This was an action against the town of Benson, for the neglect of its constable, in his official duty. The declaration alleged, that the plaintiff recovered a judgment, before a justice, on the 13th day of June, 1834, and on the 14th took out execution thereon, of that date, and delivered it to the constable, to levy, collect, and return, but that he wholly neglected either to levy, collect, or return the same, and it remains wholly unpaid to the plaintiff. Plea, the general issue. On the trial, the plaintiff offered evidence, tending to prove, that the constable actually collected the money…
1Opinion of the Court
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…
2Cases cited3 opinions
- Hill v. WaitSupreme Court of Vermont · 1831
- Sherwin v. BlissSupreme Court of Vermont · 1831
- Stillman, Wells & Co. v. BarneySupreme Court of Vermont · 1831