
    William A. Butler vs. Heman Lowry.
    Chittenden
    
      January, 1830.
    When a sheriff, deputy sheriff, highbailiff or constable, is sued before a justice of the peace for any malfeasance, nonfeasance or misfeasance in their respective offices, the writmustbe served eighteen days before the time set for trial.
    This action was commenced before a justice of the peace against the defendant as sheriff of Chittenden county for neglectingto serve a writ of execution according to law. The writ was made returnable on the 18th day of May, and served on the defendant on the 2d day of May, sixteen days before the day of the return. The suit having been brought into the county court by appeal, the fendant pleaded in abatement, that there had not been legal service of the writ, the statute requiring that it should have been served eighteen days before the time set for trial. To this plea the plaintiff demurred, and the court decided that the plea was insufficient. The defendant excepted to the decision of the court, and the cause was removed to the Supreme Court for a final hearing therein.
    
      For the 'plaintiff, it was contended, That the defendant was entitled to no more than six days notice ; because
    1st. The 24th section of the judiciary act, on which the defendant’s exceptions are founded, relates only to suits instituted in the Supreme and county courts .The actby its title extends nofarther. The 24th section, in all the former part of it, relates to those courts only. The phraseology of the act, and of the section on which the defendant’s exceptions are predicated, warrant this inference. It says, writs shall be served twelve days, &tc. before the session of the courts to which the same are returnable. The legislature did not intend the act as applicable to justices’ courts, or they would not, in the act providing for maintaining suits by and against corporations, (Rov’d Stat.p. 157,) provide for their having thirty days notice in all cases. It would have been unnecessary, had the judiciary act extended to proceedings before justices of the peace. Had they intended the act to extend to justices of the peace, they would have expressed it in the act providing for the jurisdiction of justices, or in the act relating to sheriffs. It will be noticed they were all under consideration at the same time. The
    Judiciary aet was passed March 2, 1797 ; the
    Corporation act „ March 2, 1797 ; the
    Justice’s act „ March 4, 1797, and the
    Sheriff’s act „ March 6, 1797.
    Now the construction contended for by the defendant would givf sheriffs twelve days more time than other individuals before justices, and only six days more in the higher courts. If, as the defendant contends, the additional time ,was given sheriffs to enable them to prosecute the deputy, or debtor’s bond, and the legislature had considered that the trifling suits brought before justices of the peace were of sufficient importance to render it necessary they should have such privileges before justices, they would have provided that they should have twelve days notice. But the more natural inference is, that the legislature deemed such demands too small to embarrass the sheriff, orto require time for prosecuting the bonds, and that an officer néglecting such demands should have no such privilege.
    2nd. If the judiciary act could ever have been, constructively extended to proceedings before justices of the peace, it is contended, that the legislature, by the act regulating the jurisdiction of justices, (Rov’d stat. 124J having erected a separate and independent court, prescribed the forms, time of service, and course oí proceedings, before it; and having provided for certain exceptions to the time of service, and not having made the exceptions contended for, have excluded the conclusion claimed by the defendant.
    3d. The plaintiff also contends, that all exceptions from general laws in favor of particular individuals, should be conclusively shown and strictly construed, and that no such exceptions should be created by inference or argument, and especially when the effect of such exception would be to delay the collection of small claims which it has ever been the object of the legislature and judiciary to facilitate. Now the 9th section of the justice act which regulates the service of writs, returnable before justices of the peace, is general, and comprehends all writs which may be issued by them. — Revised stat. p. 127.
    
    
      For the defendant, it was contended, That the provisions of the 24th section of the judiciary act apply to this case. This act is not confined to proceedings in the county and Supreme Court; but according to its terms is intended to regulate judicial proceedings. The service of writs generally before the county court is twelve days — before justices,six days — before court. The case of writs against officers is an exception to the general rule.
    The several acts are to be construed as if they were different sections of the same act; in which case the sheriff would be entitled to eighteen days’ notice. Or it may he construed as if it was an independent act; in which case it would be equally clear. No • r i* argument can be raised against this construction Irom the circumstance that the judiciary act contains a provision relative to the service of writs against towns, &tc. and that the legislature have passed another and independent act on that subject. — Siat. p. 156, sec. 3. Neither can any objection arise from the expression in the act, “ before the session of the court" Every reason for giving the sheriff additional time in the one case exists in the other. If it be said that by the letter of the justice’s act (Stat. 127, sec. §.) six days notice only are required in all writs, we reply that by the letter it is confined to such writs as are directed to the sheriff, and which he may serve.
   The opinion of the Court was pronounced by

Paddock, J.

The 24th section of the act regulating judicial proceedings, passed March 2d, 1797,among other things,provides, that every writ or process issuing against any sheriff, deputy- sheriff,high baliff or constable, for non-feasance, mal-feasance or mis-feasance, in their respective offices, shall be served at least eighteen days before the session of the court to which the same “ is made returnable.

The justice act (so called) which was passed the 4th March, 1797, directs, “that every writ of summons, or attachment, shall be served at least six days before the time therein appointed for trial.” And the question submitted is, whether a writ against a sheriff for eglect of duty, returnable before a justice of tbe peace, must be served at least eighteen days before the time therein set for trial, as required in the judiciary act; or six days, according to the justice act. The words every writ and process are as general and comprehensive as language can well be, and are not controuled by jurisdiction, but must apply to all writs returnable to any court in the state, unless qualified or restrained by some provision in a subsequent statute. It is contended that the justice act does controul this provision, so far as it respects writs returnable before a justice of the peace. But statutes are to have such a construction given them as that they may all stand, if consistent; always bearing in mind the evil to be remedied by,and object of the legislature in, passing them. It is evident, then, that the reason, why a sheriff by the judiciary act is entitled to six days more notice than other suitors, is, because he is liable to be sued for the neglect of his deputies; and not being supposed to have a particular knowledge of such deputy’s business, he must either give the deputy notice of the suit, or undertake himself a defence of which he had no previous knowledge ; and in either case, it would be reasonable that he should have a longer notice than would be necessary in his own private concerns j and certainly there is the same necessity of his having extra notice before a justice of the peace, that there is before the county court: more especially as the jurisdiction of justices embraces three times the amount now that it did when the act was passed. The necessity, then, existing, we will see if the tw.o statutes may be so construed as to have no discrepancy. The justice act says, “ that every writ of summons or attachment shallbe served at least six days before the time therein set for trial.” Suppose a writ against a sheriff, for neglect of duty, is returned on the day of court, having been served eighteen days previous : it admits no argument to shew, being self evident, that it has been served according to the justice act; and it is equally evident that the requisition of the judiciary act is complied with, there .having been eighteen days notice ; and that eighteen days notice is given is not inconsistent with either. The conclusion then is, that the provision in the judiciary act so far governs, or is to be so taken in connection with the justice act, as that a sheriff, his deputy, or constable, when sued for neglect of his official duty, must have eighteen days notice.

Porter, for plaintiff.

Adams, for defendant.

Therefore, the plea in abatement must prevail.

Judgment that the writ abate.  