Bramble v. Town of Poultney

In an action against a town for the neglect of a constable, it is not necessary that there should be a judgment rendered against the constable. If such a judgment has been rendered against a constable, of which, the town had no notice, it is not conclusive evidence, against the town, oi the default and neglect of the constable.

This was an action of the case against the defendants, for the neglect of Harlow Harford, as constable of Poultney for not collecting an execution in favor of the plaintiff against one Allen Belding. The plaintiff offered in evidence, as being conclusive upon the defendants, the records of a judgment of Windsor county court, in favor of the plaintiff against said Harford, as such constable, for neglecting to collect the execution aforesaid, it being admitted that said Harford was constable of said Poultney at the time he received said execution, without offering to connect therewith proof of notice to the town of Poultney, either of the commencement or pendency of the suit against said Harford ; and, as being also conclusive upon the defendant, and to entitle the plaintiff to recover as well the amount of damages as costs recovered against the said Harford in the suit aforesaid. To the admission of the record for the purposes and to the effect aforesaid, the counsel for the defendants objected, as not being conclusive as to said damages and costs. But the court overruled the objection, and admitted the said record as conclusive evidence to entitle the plaintiff to recover, both as to said damages and costs, and thereupon rendered judgment for the plaintiff. The defendants excepted. 1. The county court erred in admitting the records as evidence at all; for the suit was not between the same parties, nor were the defendants in privity with said Harford, nor did they possess the power of making themselves a party to the suit, nor had they any knowledge of its commencement or pendency ; nor, of course, the power of cross-examining the witnesses, and adducing evidence in defence, &c., and, consequently, it would be repugnant to every principle of justice, that the defendants irEthis suit should be bound by the result of an inquiry, to which they were entire strangers. 1 Starkie’s Ev. 190, 191. 2 Bac. Ab. F. 616, 617. Gilbert’s Ev. 29. Phillips’ Ev. 222. 2 N. H. Rep. 190. Wood v. Davis, 7 Cranch’s Rep. 271. Davis v. Wood, 1 Wheaton’s Rep. 6. Case v. Reeve, 14 Johns. Rep. 79. Rogers v. Atwater, 4 Day’s Rep. 431. 2. The record offered cannot be conclusive upon the defendants, for the plaintiff was not entitled to recover, against the defendants, for Harford’s neglect as constable, without alleging and proving the judgment of Bramble against Belding, and the issuing of the execution on that judgment. Barber v. Town of Benson, 9 Vt. Rep. 171, The same doctrine is recognized in Mill v. Wait, 5 Vt. Rep. 124. 3. If the plaintiff had a' right to introduce the record as evidence at all in the case, it cannot be conclusive, for even if it had appeared that Harford acted by command of the defendants, it is but prima facie evidence. 1 Stark. Ev. 194. Doug. Rep. 56. 4. At all events the record was no evidence at all to entitle the plaintiff to recover of the defendants the bill of cost in his suit against Harford. Comp. Statutes, 420. It was not necessary that the plaintiff should obtain a judgment against Harford to entitle him to recover of the town of Poultney. In cases of judgments, against sheriffs and high bailiffs, rendered by default, sureties are allowed all the advantages upon trial on scire facias, which the principal might have had in the original action. Comp. Laws, 70. We infer, therefore, that a judgment rendered against a sheriff or high bailiff, for official neglect or default, on trial, would be conclusive against the sureties upon scire facias, on such judgment. But, in the case of constables, it is not provided that the town, as their sureties, shall have the advantage of a trial after judgment against a constable for official neglect or default, even when such judgment is rendered by default; and afortiori, they would not be entitled to it it after judgment rendered upon the verdict of a jury. The only facts that can be set up in defence have been put in issue, and the finding of the jury is conclusive as tos those facts, and they cannot again be put in issue by the. defendants.