
    Franklin County,
    January Term, 1827.
    
    
      Samuel Sinclair and Michael Sinclair vs. William O. Gadcomb.
    
    A councillor acting as justice of the peace for the whole state, may lawfully sign* a county court writ, to be served out of the county in which it issues and is* made returnable.
    Bn an. action of deb* on jail bond ther whole sum due in equity to the créditos may be recovered by the name of damages.
    Tms was a writ of error to reverse a judgment of the county court rendered at April Term, 1826.
    The original action was debt on jail bond in common form .The writwas directed to die proper officers of Chittenden county,where the defendants resided, and there served and made returnable to the county court of Franklin county. It was signed by the Mon. Seth Wetmore, a member of the Executive Council and resident in the county of FranJclih, who by virtue of his office of council-lor signed the writ in these words,, “Seth Wetmoref Justice of the
    
    
      
      Peuoe for the whole state.” The defendants pleaded in abatement that the writ was not signed by any competent authority, and should have been signed by the clerk or one of the judges of the court to which it waa made returnable. This plea being overruled on demurrer and a judgment'of respondeos ouster awarded, non est factum was pleaded and final judgment rendered for the plaintiff at the term-aforesaid. The judgment was entered up for damages and costs only, the whole suni due to the plaintiff upon the original judgment and execution with interest being included in the damages. Upon this the present writ of error was brought, assiging for error the decision of the county'court upon the plea in abatement,- and the form of the judgment, in chief, alleging that the latter should have been entered up for debt, damages and costa and not for damages and costs only.-
    
      Bailey, for the plaintiff in error.
    1. As to the first and most important point it is contended that there is no such officer or magistrate known to our constitution as a “Justice of the Peace for the whole state,” but as it is incidental to the office of Councillor or Judge of the Supreme Court. It should, therefore, appear upon the face of the writ whether the person signing it claims to be a justice of the peace throughout the state from his being Councillor, or being judge, that the opposite party may have an opportunity to traverse the fact that he holds the office from which he derives his authority to sign the process.
    2. But if this were unnecessary, it is denied that any Justice of the Peace, Councillor or Judge of the Supreme Court, could-lawfully sign the writ in question.
    A Justice of the Peace may sign process, returnable before himself and direct the same to be executed in any county in the state. — Rev.Stat.p. 126, .s. 9. He may also sign a writ returnable to the County Court in the County where he resides if it is to be served in such county. But he cannot issue a writ to be served in another county, made returnable to the County Court in his own county or in any other. — Rev. Stat. p. 63 — 4, s. 24.
    The statute expressly confines to a Judge or Clerk of a County Court, the. authority.to sign..writs returnable before such court,, but whereof service, is to be made in another County. — Rev. Stat. p. 64,. s. 24.
    
    The enumeration of certain officers who. are,, in expreés ternas, empowered to sign such.process,necessarily excludes all others, and leaves no room for implication, or presumption,
    3. It is contended that the powers of a Councillor, or, Judge of the Supreme Court, as a Justice of the Peace,, arq co-extpnsive with those of a common Justice of the. Peace and not greater, unless a grant of other or larger powers to them can be shown-But no statute , can be found which confers on them, mope .extensive powers than any magistrate possesses in his;own'cqunty., T-he. constitution of this state expressly declares.that “every member;, of the Council shall be a justice of the peace fop the.jvho.Ie state, by virtue of his office.” — Chap. 2, s. 11.
    
    Now what was intended by the words “Justice of the Peace for the whole state” ? , Clearly this.and nothing more, that a Councillor might exercise the powers .of a Justice of the. Peace in any county in the state, in which he happened to, he., He may , accordingly in any county ..where .he resides, or is, for .the time being, solemnize marriage, administer, oaths .and take ackowl-edgments of deeds, try causes fac, in the same manner and with as full authority as any other Justice of the Peace; but he cannot issue a writ bearing date at St. Albans in Franklin County returnable before himself in Rutland County t and to be served in the County of Windsor, because no Justice of the Peace can do this;
    4. But it is asserted that Councillors, have been accustomed .to sign writs to be served in any county, and made, returnable to the County Court in the . county where the writs áre dated,, This custom is denied. The practice may have .obtained in one or two. counties, but has never been general, y and it is believed, that the instances are very rare of .an. attempt by a Councillor to. .exercise the power in question. And, moreover, as the, custom, if it exist,. is opposed to the express language of the statute, it is incumbent, on the party who alleges its existence, to make a clear and satisfactory proof of it.
    But whatever may have been the practice in some counties through igh'ofariee or ínádveharice, it is conceived that, in a government, where the powers arid' rights' óf every officer áre defined with great care and 'precision, rio persón can be permitted to prescribe for authority •to "sign writs or Other process of courts of justice — -especially, 'at. 'So eáfly'.’a period of' our history, that ho custom ór usage can have' acquired the force of 'a law in opposition to positive en-’actfnents.
    5. The action below having been debt On Jail Bond, the judg-'Inént ought’to h!ave been for the plaintiff to recover his debt, dairi-agesf&c. arid not his Marriages only. — 1 Arclib. Pr. 203.
    
      Aldis'mi Dbt/úis, for the defendant in error.
    The ‘authority ’of a Councillor is the ’same in every county, ánd'ashe is 'dJiistice'of the Pecice for the whole 'state, lie is Of 'course a Jústice ’of the Peace fór each county in the state, as well 'as 'for the brie in 'which he resides ; for the greater includes the less. — Pide oíúiiiution of 'Vermont, Chap. 2, s. 11.
    As'a 'Jiistice 'of ihe Peace for the county of ’Franklin hé may sign writs'returnable to Fr'ánklin County Court, and to be exe-'cüted in the same bounty ; and as his authority is riot confined to the county of Franklin, but is the same in Chittenden County as in tins, it follows that all writs signed by a Councillor may run into Chittenden County and be there executed. — Vide Statute.
    
    It has long been the practice in every county in the state for Councillors to sign writs returnable to any County Court, and to be executed in any county in ithe state ; and such a practice for a long course of years is sufficient to show that die statute has always been construed SS contended for by ihe defendant in error, feut if it be thought by the Cóurt that the construction which has always been given to the statute, arid which is contended for by the defendant in error, is not a true one, yet die court will not give it a different one if the consequences are likely to be mische-vious, especially as it is not material ás respects future practice which way die law is settled oh that point.
    The judgment of the Court beloiv, That the said WilUam recover of said Sinclair his damages and cost, and riot for debt, ■ damages and costs, is a matter of form and no ground for error, especially when there is no pretence that , the judgment was rem ■ dered for too large a sum.
   RoYc®, J.

delivered the opinion of the Court.

. It is first insisted in support of this writ of error that a council-lor has no authority to sign a county court writ, to be served out' of the county in which it is made returnable. The statute enacts “that every writ or process returnable to any county court within this state shall be signed by a Judge or Clerk of the County ■Court in which the cause is to be tried, or by a justice of the peace of the same county.” Thus far it would seem that such writ, when signed by a justice was as perfect and available to every purpose, as if signed by the Clerk or- Judge of the Court; and that the only question would be whether a Councillor is a Justice of the Peace of the county in which he resides, so as to ■ take the authority here conférred. But tins enactment is immediately suceeded by another, “that all writs or processes signed by a Judge or Clerk of the County or Supreme Court, as well original as judicial, shall, run into- any county or place within this state, and be there executed by any. officer to whom directed.” The construction upon these two provisions of- the statute has al-s ways been, that a common Justice of the Peace for the county could not sign such writ, or perhaps any County Court writ to be served in another county. It would therefore seem to result, that the right of a councillor to sign a county court writ, is not expressly conferred by any statute. The office of Justice of the Peace for the whole state, as incident to that of Councillor, is derived from the constitution ; and the construction of the constitution as far as we are informed has ever been, that the office ofJustice of the Peace through-outthe state includes’that of justice for every county and place within the state, whenever necessary to be assumed, or understood to sustain an -act of a councillor in his capacity of Justice of the Peace. When the authority of. Councillors.to sign these writs, a» Justices of the Counties, where the writs issued, was thus established, it came, to be generally understood, that such writs by them signed were not limited by the local jurisdiction of the County Courts to which they were made returnable, but might run to the extent of their own jurisdiction-as Justices of the Peace.— Whether this conclusion was correct or not, it is settled byprac-tice too long and uniform to be now disturbed. And there ÍS the less OCCassion to do this, since it is a matter of indifference how the law on this point is. No evil can result from the power thus exercised by these magistrates $ it is the performance of an act almost wholly miri-isterial, and is but the incipient step in pursuit of justice.

Bailey, for plaintiffs in error.

Jlldis and Davis, for defendant in error.

As to the other ground of error, it may well be doubted at this day, whether a judgment should be reversed because a wrong name or denomination was affixed to the sum recovered. Biit without deciding this as a general question, we are of opinion that the sum adjudged to the plaintiff below was properly recovered as damages. The 75th section of the judiciary act of 1797 relates to actions on bonds with a,penalty where the party is not to have successive remedies, as is contemplated in section 99 of the same statute, butis to take his whole satisfaction at once. Inthisclass of bonds was the one in question. Here the formal judgment for the penalty is dispensed with, and the court is authorised at once to .give judgement for what is due in equity and good conscience. It is true that no name is given to the smaller or subordinate sum; it is not, however, the nominal debt sued for, nor can it perhaps with strict propriety be called a part of that debt, (where the condition is not for the payment of a lesser sum in money, but for the performance or forbearance of a collateral act,) but is in truth the damages sustained by the party. The entry of judgment in this form, when justice is otherwise done, cannotbe alleged as the ground of error. The judgement of the County Court is therefore affirmed. - 4  