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McK Ormsby v. Morris.

said goods from attachment, and did not deliver said goods to said Chs. C. P. Baldwin, deputy sheriff as aforesaid, when demanded.”

When the breach of a contract is set out argumentatively, or there is uncertainty in pleadings, it can only be reached by a special demurrer; Catlin v. Lyman, 16 Vt. 44.

The opinion of the court was delivered by

BENNETT, J. The county court were correct in not dismissing the cause for want of jurisdiction. The action sounds in tort, the damages are laid at $200, and the recovery was, in fact, for more than $100, including the interest on the execution.

But a more important inquiry arises on the sufficiency of the declaration. To sustain this action for the neglect of the officer in not keeping this property so that it could be levied upon, it is necessary that the property should be charged in execution within thirty days from the time of final judgment. This, from the declaration, does not appear to have been done. All that is alleged is, that the court, when the judgment was rendered, sit on the 23d day of March, 1852, that execution was taken out bearing date the 29th of March, 1852, and that the officer demanded the property of the defendant on the 26th day of April, 1852, and there is no averment that this was within thirty days from the time of the rendition of the judgment, and no averment of the day on which the court adjourned. It may have been in session but for a single day. The fact that the execution bears date the 29th of March, 1852, is no evidence of the time the court adjourned.

It cannot be intended that it issued at the earliest period at which the plaintiff was entitled to take his execution. If the statute bad fixed the day for the ending of the term, as well as the day for the beginning, we might, perlaps, take judicial notice of the day when the court adjourned, and, in this way, save the declaration, but as the ending of the term is not fixed by law, its termination must be matter of averment and proof.

Judgment of the county court is reversed, and judgment that the declaration is insufficient.

The plaintiff had liberty to amend on the usual terms.

State v. Fisher.

THE STATE OF VERMONT v. SAMUEL G. FISHER.

Quo warranto to prevent a person from holding the office of justice

and postmaster at the same time.

The supreme court will not ordinarily interfere by writ of quo warranto, or other

wise, to prevent a person from holding the office and exercising the powers of a justice of the peace while he has the appointment of, and is acting as a postmaster.

If they would, the present proceeding could not be sustained, there being no proof

that the respondent has acted as postmaster during the year for which he has been elected a justice.

INFORMATION, by the state's attorney of the county, setting forth that the respondent was holding and exercising the office of postmaster in the town of Orange, being an office of profit and trust by and under the authority of the congress of the United States, and that he had been elected to, and was holding and exercising the office of justice of the peace for the county of Orange, being a judiciary office, under the authority of this state, for the year commencing December 1st, 1855; and praying the consideration of the court in the premises, and that due process of law might be awarded against the respondent, to answer by what warrant and authority he claimed to hold, exercise and enjoy the last named office.

A copy of the respondent's commission, as postmaster, certified by the postmaster-general of the United States,-a certificate from the secretary of state of Vermont, showing the election of the respondent as a justice of the peace, and an affidavit showing that he had acted as a justice were filed in evidence.

A. Howard, Jr., state's attorney, in support of the motion.

I. The constitution of this state, part 2, $ 26, declares that " no person holding any office of profit or trust under the authority of congress, shall be eligible to any appointment in the legislature, or of holding any executive or judiciary office under this state,”

The office of postmaster is an office both of profit and trust, under the authority of congress, and the office of justice of the peace is a judiciary oflice under this state.

Most of his powers and duties are of a judicial nature, and concern the administration of justice.' McGregor v. Balch et al., 14 Vt. 428.

State v. Fisher.

II. Quo warranto is the only way to remove any one who has usurped, and is unlawfully holding and exercising any office under this state. McGregor v. Balch, 14 Vt. 428 ; 3 U. S. Dig. 311; 2 N. Y. Dig. 264; Big. Dig. 406; 1 Swift's Dig. 567.

for the respondent.

BY THE COURT, REDFIELD, CH. J. This is a petition by the state's attorney for leave to file an information, in the nature of a quo warranto, against the respondent, for exercising the functions of the office of justice of the peace and postmaster at the same time.

The proof shows that he was elected justice of the peace for the county of Orange, for the present year, and is acting as such, and that he was appointed postmaster, and accepted the office in April, 1852, but there is no distinct proof of his having acted as such since the first of December last, and upon this ground alone we should be compelled to dismiss the petition.

But as this is a defect readily supplied, we ought to say perhaps, that we should still decline to interfere.

We regard this proceeding, like writs of mandamus and other prerogative writs, as resting altogether in discretion, and there are many reasons why we should not interfere.

1. The office is of very small importance, there being nearly two thousand in the state.

2. It is but for one year, and in Massachusetts, and some other states perhaps, the supreme court refuses to interfere by writ of quo warranto, upon that ground alone; the time being scarcely sufficient to determine the case, before the office will expire, and in the present case, the term is already considerably abridged.

3. Here is no other person who complains of being deprived of the office which is exercised by the respondent.

4. The objection is of no considerable practical importance. It may be, and probably is a technical objection. But it is in vain to argue that the objection is really of any practical weight. It might have been deemed important when it was first adopted, before the working of the general and state governments had become fully understood, and it might now be viewed of more weight in reference to

Stone, Apt. v. Peasley's Estate.

offices of mere emolument, but in fact, a man's fitness to act as justice of the peace is very little affected by any amount of patronage or emolument resulting from the office of postmaster in any town in this county. And if the people choose to elect one a justice under such circumstances, I should hardly think it a proper occasion to interfere and save them from a technical violation of their state constitution.

If this were a case seriously affecting public interests or private rights, or where others claimed to be deprived of office by the usurpation, or where the rights of great moneyed corporations, as to their management and control, were seriously brought in question, and large pecuniary interests were involved, or the quiet of a large district depended upon the legal determination of the ques. tions at issue, we should not hesitate to interfere and settle such questions, as we did in this county upon a former occasion, and bare since done in another county. But nothing of this kind exists in the present case. The purpose to be accomplished is, in our judgment, quite too insignificant to justify the resort to any such prerogative suspension and control by this court.

Petition dismissed.

John Stone, apt. v. The Estate of DANIEL PEASLEY.

Notice of proceedings in the probate court. Distribution of

estates; qualification of decrees respecting, after they have been carried into effect.

1

Notice must be given to all persons interested in the distribution of an estate, or in

an apportionment of an undivided fund, in the hands of a guardian, belonging to two or more of his wards, of any proceedings before the probate court making such a distribution or apportionment; or altering or modifying one previously made.

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The proceedings of the probate court in the present case, in revising their previous

determination as to the proportion of an undivided fund in the hands of a guar. dian, which one of the two wards of such guardian was entitled to, held invalid

Stone, Apt. v. Peasley's Estate.

on account of there having been no notice of the proceeding given to the representatives of the other ward who had previously deceased.

Quære. Whether a decree of the probate court for the distribution of an estate can

be altered or modified after it has been carried into effect.

A probate court distributed an estate exclusively to the heirs of the full blood,

taking no notice of the half blood heirs, who were, in law, equally entitled to their proportion. Held, that the title to the estate was beyond the control of the probate court, after the full blood heirs had taken possession, in pursuance of the decree.

Orleans county, cited by REDFIELD, CH. J.

Distinction between such cases and those in which the probate court have reviewed

and revised the settlement and allowance of an administrator's acount;-and the grounds of the proceeding in the latter class of cases considered.

APPEAL from the disallowance of a claim made by the appellant against the estate of the intestate. The cause was referred, and, from the report of the referee, the following facts appeared.

By the will of Daniel Peasley, sen., the father of the intestate, which was probated January 18, 1828, three-fourths of his property, after providing for his widow, was given to his son, the intestate; and the other fourth was to be equally divided between his daughters, Lucy Ann Peasley and Laura Ann Peasley. The appellant was appointed guardian for the intestate, and also of the said Lucy Ann and Laura Ann, all of them being minors, and received the property to which they were entitled from their father's estate. At the expiration of his guardianship for Lucy Ann, the eldest of the three children, he settled his account and paid over, as her share, one-eighth of the property which came into his hands; and on the 29th of November, 1843, the said Laura Ann having become of age, he settled in the probate court his account as guardian, both of the said Laura Ann and of the intestate, and by a decree of that court he was directed to pay, and did pay over to the said Laura Ann one-eighth of the fund in his hands then belonging to the two wards, Laura Ann and the intestate. Subsequently one B. W. Bartholemew was appointed guardian for the intestate, and the appellant paid over to him the remaining seveneighths of the fund, which was paid over by the said Bartholemew to the intestate, upon his becoming of age. The intestate died in March, 1854, and administration was duly granted upon his estate, and commissioners appointed. In September, 1854, an application was made to the probate court by the said Laura Ann, setting forth,

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