Town of Brighton v. Kelsey

• Citation: 59 A. 833,77 Vt. 258
• Court: United States State Supreme Court of Vermont
• Decision Date: 11 February 1905
• Parties: TOWN OF BRIGHTON v. KELSEY.

59 A. 833

77 Vt. 258

TOWN OF BRIGHTON

v. KELSEY.

Supreme Court of Vermont. Essex.

Feb. 11, 1905.

Exceptions from Essex County Court; Henry R. Start Judge.

Action by the town of Brighton against M. L. Kelsey, as president of the Island Pond Water Company, based on sections 380 and 382 of the Vermont Statutes (1894) for failing to comply with the requirements of section 380. From an order overruling a motion to dismiss the writ defendant brings exceptions. Reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON. and POWERS, JJ.

H. B. Amey, H. B. Howe, and H. W. Blake, for plaintiff.

Young & Young, for defendant.

WATSON, J. In the court below, the defendant moved to dismiss the writ because the magistrate signing the same did not enter upon it a minute of the day, month, and year when he signed it, as required by section 1993 of the Vermont Statutes. To the overruling of this motion, the defendant excepted. No question is made but that the action is within the purview of this statute. Just above the magistrate's signature to the writ itself are the words and figures following: "Signed and dated at Brighton in the County of Essex this 7th day of June, A. D. 1904." This, the plaintiff contends, answers the requirements of the statute in this behalf. By V. S. 1992, "When a complaint, information, or indictment is exhibited in a case mentioned in this chapter, the clerk of the court or magistrate to whom it is exhibited shall, at the time, make a minute thereon in writing, under his official signature, of the day, month, and year when the same was exhibited;" and by section 1993, "When an action is commenced in a case mentioned in this chapter, the clerk or magistrate signing the writ shall enter upon it a minute of the day, month, and year when the same was signed." The law of these two sections was originally and for a long time in one section, and an examination of the phraseology there used throws light upon the question before us. In the Statutes of 1787, p. 91, the law reads: "And whenever any indictment, presentment, information, complaint, or declaration, shall be exhibited or drawn on any penal statute, the day, month, and year of the exhibition thereof into any oflice, or to any officer, which may lawfully receive the same, or of signing the writ, without any antedate thereof, shall be truly marked on such process or proceeding, by the same officer, without any fee for the same; and the said process or proceeding shall be taken to be of record from that day forward and not before." In the compilation of 1797, p. 595, e. 68, it reads: "That when any bill, complaint, information or indictment shall be exhibited, or any action or suit brought or commenced, * * * the clerk of the court or magistrate to whom such bill, complaint, information or indictment shall be exhibited, or who shall sign the original writ in such action or suit, * * * shall at the time of exhibiting or signing as aforesaid, make a minute in writing under his official signature, on such bill, complaint, information, indictment or original writ, of the true day, month and year, when the same was so exhibited or signed." Thus it is seen that in the early statutes the character of the...