
    SUMNER KIMBALL v. S. S. KELTON, Admr.
    
      Petition Under the Fraud, Accident, ¿fe., Statute, R. L. s. 1428. Remedial Statute.
    
    1. When the return day is wrong in a copy of the writ left by an officer, and the defendant is defaulted and unjustly deprived of a hearing because of the mistake, he is entitled to have the justice judgment set aside on petition to the County Court.
    2. The fraud, accident and mistake statute is remedial.
    3. R. L. s. 1428, fraud, accident, mistake — construed.
    Petition. Heard by the court, March Term, 1881, Washington County, Taet, J., presiding.
    On the trial it appeared that the writ mentioned in the petition was made returnable before the justice of the peace who signed it on September 3, 1880; that it was seasonably served on the defendant in that cause by the delivery of a copy by the officer serving it, which copy the defendant gave to his attorney with instructions to attend to the case; that from that copy the defendant’s attorney understood that the writ was returnable on September 10, 1880 ; that on September 3,1880, no appearance was made before the justice on the part of the defendant in that suit, and judgment was rendered for the plaintiff by default; and the court found as a fact that the copy of the writ served upon the defendant as aforesaid was not a true copy of the original, but stated the return day to be the 10th day of September, 1880, instead of the 3d day of that month and year.
    The counsel for the petitionee claimed that upon those facts the remedy of the petitioner was against the officer who served the writ, and that the statute under which the petition was brought did not apply. The court ruled otherwise and granted the prayer of the petition; to which the petitionee excepted.
    
      Clarence II. Pitlcin and Osman D. Ciarle, for the petitionee,
    cited 31 Yt. 687; 26 Yt. 748 ; 29 Yt. 332; 45 Yt. 450 ; 52 Yt. 503 j 7 Cush. 430.
    N C. Shurtleff, for the petitioner,
    cited Gen. Sts. s. 7; 17 Yt. 101; 19 Yt. 457; 33 Yt. 565.
   The opinion of the court was delivered by

Yeazey, J.

This petition is brought under the fraud, accident and mistake statute, so-called, Gen. Sts. c. 38, s. 7, to set aside a judgment of a justice of the peace rendered by default. It is a remedial statute, entitled to be liberally construed, and provides a remedy additional to any existing at the common law. The officer, the agent of the plaintiff in that suit, in serving the writ made the return day wrong in the copy delivered to the then defendant, this petitioner. The default grew out of this mistake. We think it is a plain case where the defendant “ was deprived of his day in court,” by “ fraud, accident or mistake ;” and that he is entitled to this remedy notwithstanding the return of the officer on the original writ states that a true copy was delivered to the defendant, and although he might have a remedy against the officer for a false return. Mosseaux v. Brigham, 19 Vt. 457; Witherell v. Gloss, 26 Vt. 748.

Judgment affirmed with costs in this-court.  