A consta ble's bond en to the 3. THE PEOPLE V. HOLMES, AND ANOTHER, May T. 1829. 2 Per Cur. Savage, C. J. The bond of a constable may may be giv be given to the people, though it is not deemed nacessary that it should be thus executed, as intimated in Warner v. Racy, 20 though it is John. Rep. 74. people, not necessa ry that it should be So. A prior de mand of payment need not be Vide Dutton v. Kelsey, et al. 2 Wend. Rep. 615. 4. THE TOWN OF MIDDLEBURY V. NIXON, ET AL. Jan. T. 1828. 1 Vt. Rep. 232. This was an action of debt upon two penal bonds given by the defendants, as security to the town, that Nixon should faithfully averred in a execute the office and duties of constable and collector of the suit upon a town. The defendants demurred to the declaration and assignorcollector's ed for cause that it did not aver at any time a demand of Nixon for the arrearages on the tax-bills delivered to him to be collected. constable's official bond Hutchinson, J. It is objected that the declaration does not allege any demand before the bringing of the action. The statute, (p. 405.) seems to imply that the demand there spoken of should precede the process to obtain an extent against the collector, as there specifically pointed out; but no statute, even by implication, requires such demand to precede the action upon the bond. This stands as at common law, which requires no such demand. (C) DUTIES OF. 1. A constable CONNER V. THE COм'TH. June T. 1810. 3 Binney's Penn. is not bound to execute a warrant i; sued upon common re port and without oath. Rep. 38. The Court. Tilghman, C. J. Yeates and Brackenbridge, Js. concuring, decided that a warrant of arrest, issued upon common rumor and report of the party's guilt, though it recite that there was danger of his escaping before witnesses could be summoned to enable the judge to issue it upon oath, is illegal, and the constable to whom it directed is not bound to execute it. 2. BROWN V. BROWN. March T. 1819, 15 Mass. Rep. 389. Nor a sum mons or a li The Court in this case dismissed a libel for a divorce, on the ground that a constable had no authority to serve the sum- bel for a di mons. vorce. 3. HART V. HUCKINS, May T. 1809, 5 Mass. Rep. 260. Mass. Rep. 399. cannot serve an original The petitioner alleged that he was sued in a real action, and A constable having no notice of the suit, he was defaulted. It apeared that service of the original writ was made by a constable, and writ in a the Court held that by the statute of 1795. c. 41. sec. 3, com- real action. monly called the fee bill, constables are authorised to serve writs in personal actions only, and those only where the damage sued for does not exceed seventy dollars. 4. And the same rules of law, which gov whic ern sheriffs PIXLEY V. BUTTS, Oct. T. 1823, 2 Cowen's N. Y. Rep. 422. Per Cur. Savage, C. J. The conduct of constables, upon process from justice's courts, must be governed by the same law in the execu as that of sheriffs upon process of the higher courts when there tion of pro is no statute regulation. 5. cess from higher courts, gov ern consta bles in exe cution of a CRAMER V. CRAWLEY, Nov. T. 1790, Coxe's N. J. Rep. 43. justice's On certiorari. process. Crawley, the defendant, in this case being the township consta- A constable ble, had himself summoned the jury who decided the cause, and this court reversed the judgment. (D) RIGHTS OF. THE STATE V. ARMFIELD AND WRIGHT, Dec. T. 1822, 2 Hawk's N. Ca. Rep. 246. is an impro per person to summon a jury in a cause in which he is nterested. to break an Per Cur. Taylor, C. J. decided that a constable cannot break A constable open an outer door or window to execute civil process; and if has no right the door be partly closed by those within, who are resisting the outer door entrance of the officer, and be not entirely shut, the officer is to execute guilty of trespass should he oppose them with force, and thereby gain an entrance. civil process But he may to execute a 2. BELL V. CLAPP, ET AL. Aug. T. 1813, 10 Johns. N. Y. Rep. 273, (263.) The court in this case held that a constable executing a search search war warrant if the door be shut, after a demand and refusal to open it, may break open the outer or other door of the house. rant. And may arrest a per son for a the peace without 3. UNITED STATES V. HART, April T. 1817, 1 Peters's C. C. U. Washington, J., In this case decided, that a constable might without a warrant, arrest a person driving a carriage through a breach of crowded, or populous street, at such a rate or in such a manner as to endanger the safety of the inhabitants. So also a constable may arrest a breaker of the peace without a warrant ; Taylor v. Strong and Blanchard, 3 Wen. Rep. 384. S. P. Philips v. Trull, 11 Johns. Rep. 562, (486.) warrant.* A constable may exe cute pro 4. THE PEOPLE, ex rel. INGERSOLL V. GARY. Feb. T. 1827, 6 Per Cur. Sutherland, J. A constable has the same right to cess in any execute process in every town in the county, as well as in that in which he was chosen, and where he resides. In this respect, his terriorial jurisdiction is co-extensive with that of the she.iff. town in the county. 5. A constable who suffers an execu tion to sleep JONES V. WILSON, Aug. T. 1804, 3 Cowen's N. Y. Rep. 429. (434.) S. P. BROWN V. HOTCHKISS AND COOKE, 9 Johns. Rep. 361. On certiorari. The plaintiff below was a constable, and had an execution against the defendant below, issued by a justice in his hands of the peace, at the suit of a third person. The constable, without making any demand on the defendant, and without re and then A constable cannot arrest for an affray after it is over without a warrant; but during progress he may; Clifford v. Brandon, 2 Campb. 353. It is the duty of a constable not to go beyond the power conferred on him by warrant; Anon. 12 Mod. Rep. 344. But to act strictly as it directs; Rex v. Tooley, 11 Mod. 248. To enable a constable to act without a warrant, good grounds of suspicion must be shown; Rex v. Tooley, 11 Mod. 248; 2 Ld, Raym. 1299; Clafton's case, 12 Mod. 566, S. C. Holt 406; as a reasonable charge of felony; Samuel v. Payne, 1 Doug 359. Refusing assistance to a constable when requested is an indictable offence; Rex v. Wilabore, Comb. 309. money to quest, paid the money to the plaintiff named in the execution, pays the and then brought his action before a justice against the defend- the plaintiff ant, to recover the amount so paid, to the use of the defendant. Verdict for the plaintiff. withoutany previous de mand of the defendant, exe- and without his request, his cannot Per Cur. The constable had no right to sleep on the cution, and then pay the money to the plaintiff and bring action against the defendant, without any previous demand, or maintain an request. Such a practice is not only against the rules but would tend to multiply suits, and increase litigation. ment reversed. 6. action a of law, gainst the Judg DANIEL LAWRENCE V. JONES, CONSTABLE, Feb. T. 1820, 2 Southard's N. J. Rep. 825. for the a defendant, mount, paid to the plain tiff. a person preventing execution. On certiorari. Judgment had been rendered in favor of Jones Nor against the plaintiff below. Kirkpatrick, C. J. The constable, in his state of demand, him from sets forth that he had certain executions in his hands, against serving an one Samuel T. Lawrence, and that this Daniel Lawrence prevented him from taking his body, upon these executions. If this were so, it subjected him to a criminal prosecution, and also to actions at the suit of the plaintiffs in these executions, respecttively, but it gives the constable no action, unless it be for his own direct and personal injury. He cannot lump it in this way, and become the general avenger of other men's wrongs. His giving his notes to those persons, for the money due upon their executions, does not help him. No man, and especially an officer of the peace, can buy up other men's quarrels. Judgment reversed. 7. TERRELL V. ROGERS, Sept. T. 1794, Coxe's N. J. Rep. 229. stable who to pay the The Court in this case said, (although the question was not But a con raised,) that they saw no reason why a constable who has been has been compelled to pay the debt of a defendant, against whom he has compelled executions, may not recover from him the amount thus actually debt of a de paid, in an action for money paid, laid out, &c., for the use of may recov such defendant. 8. WINTERMUTE V. HANKINSON, Feb. T. 1822. 1 Halst. N. J. Rep. 140. fendant, er the a mount thus paid. delivery of This was an action of trover, and conversion, brought by The mere 1 VOL. III. 39 an execu tion to a no right to maintain trover for Hankinson, the plaintiff below, to recover the value of a mare constable Hankinson founded his claim to the mare, upon a certain execution which he held, as constable, against the owner of the mare, previous to her having been transferred to Wintermute. the goods, This claim was resisted by Wintermute, upon the ground, that Hankinson did not prove he had made any levy on the said mare, within the time prescribed by law, or at any other time. It appeared, by the certificate of the justice, that the defendant hindered the constable from taking possession of the mare, by driving her away. Verdict for plaintiff. he must make an in ventory. A constable cannot re ceive a Kirkpatrick, C.J. The mere delivery of the writ to the constable, gives him no right to maintain trover. He must make an inventory, and then, only, is he considered as taking possession of the goods of the defendant, and if they are not actually taken away by the constable, they are considered as bailed to the defendant for safe keeping. Ford, J. I hold that the officer must show either an actual, or constructive possession, to enable him to maintain trover. A constructive possession might arise from the defendant's delivering to the constable an inventory of his goods, or, possibly, from the constable's being ready to take possession, and being prevented by force. Judgment reversed. Rossell, J. concurr ed. 9. INGALLS V. LORD, Aug. T. 1823, 1 Cowen's N. Y. Rep. 240. In this case the defendant, a constable, received from the plaintiff a promissory note as security, which he afterwards promissory sold, and the Court held the act to be illegal and void, as a faction of an chose in action could neither be levied on, nor sold. note in satis execution. Nor apply an execu 10. MILES V. RICHWINE, Nov. T. 1828, 2 Rawle's Penn. Rep. 199. tion in his for Richwine, the plaintiff below. hands to the satisfaction debt. Richwine recovered judgment against Miles, a constable, and of his own execution was issued thereon, and delivered to one Monks to serve. While it remained in the hands of Monks, Miles recovered judgment against Monks, and execution was issued thereon. against the estate of Monks; when the two constables effected a compromise, and one execution was sett off against the other, and Monks gave Miles a receipt in full for the amount due on Richwine's execution against Miles. Monks then took the ben |