Our law upon the subject of qualification of constables in counties adopting township organization, is a literal re-enactment of the statute of New York, under which it was held, that the following form of instrument to be executed by the constable, was a substantial compliance with the statute, and was held to be good.1 Form of Instrument to be executed by a Constable and his Sureties for performance of duties. A. B. chosen (or "appointed") constable of the town of in the county of, and C. D. and E. F. as sureties, do hereby jointly and severally agree to pay to each and every person who may be entitled thereto, all such sums of money as the said constable may become liable to pay on account of any execution which shall be delivered to him for collection, by virtue of his said office. The supervisor or town clerk, will, if approved, endorse such approval on such instrument, which will be his approval of the sureties therein named, and will then cause the same to be filed in the office of the town clerk, and a copy of such instrument, certified by the town clerk, will be presumptive evidence in all courts of the execution thereof by such constable and his sureties.2 Form of Supervisor's (or town clerk's) approval, to be indorsed on Constable's instrument of security. I hereby approve the within instrument and the sureties therein named, this day of 18-. JOHN DOE, Supervisor of the town of The omission of the constable to file his instrument of security within the eight days, as prescribed by law, does not affect its validity, as to persons injured; in this respect the statute is merely directory. Nor can the constable, or his sureties, object that the instrument is not un(2) Sess. Laws, 1851, page 43, Sec. 9. (1) 2 Wend. 615. (3) 2 Wend. 615. der seal; nor in the form prescribed by the statute; nor that the sureties were not approved of by the town clerk or supervisor.1 All actions against a constable or his sureties upon his instrument of security, must be prosecuted within two years after the expiration of the term of his office; this is only, however, when the suit is brought upon the instrument. There can be no doubt that the constable himself would be held liable in an action for money had and received, breught by the party on whose execution he had collected money, if the suit is brought before the claim become barred by the statute of limitations.3 When the instrument of security is in the form of a bond to the people, an action of debt in the name of the people, but not in the name of the party aggrieved, may be maintained by any person to whom the constable has become liable; although covenant may be brought by such person on the condition of the bond, in his own name.1 Resignations of the office of constable, in counties adopting township organization, should be made to the justices of the peace of the town, who are authorized to accept the same for sufficient cause shown to them; and justices accepting any such resignation, should forthwith give notice thereof to the town clerk of the town.5 IV. SPECIAL CONSTABLES, WHEN AND HOW APPOINTED. Rev. Stat. 327, Sec 86. Any justice of the peace may appoint a suitable person to act as constable in a criminal or other case, where there is a probability that a person charged with any indictable offense, will escape, or that goods and chattels will be removed before application can be made to a qualified constable; and the person so appointed shall act as constable in that particular case, and no other; and any temporary appointment so made, as aforesaid, shall be made by a written indorsement, under the seal of the justice deputing, on the back of the process, which the person receiving the same shall be deputed to execute." The statute requires that the appointment of a special constable should be made by a written indorsement on the back of the process, under (1) 12 Wend. 306; 14 Johns. 401. (2) Sess. Laws, 1851, p. 43, Sec. 10. (3) Cowen's Tr. 3d. ed. 561; 4th ed. Sec. 1641. the seal of the justice. An appointment upon a separate piece of paper, is not a compliance with the statute.1 But two cases are specified by the statute in which a justice is authorized to appoint a constable pro tem. The one is to execute criminal process where the accused is likely to escape; and the other is to execute civil process, where goods and chattels are about to be removed, before application can be made to a qualified constable.2 The indorsement upon the process, therefore, should always show the reason why the appointment is made. The form given in cases of attachments, may be used for all occasions, by being varied to suit the case. 8 Judges of elections are authorized and empowered to appoint one or more special constables, to assist in preserving order during elections, in case no constable shall be in attendance at such election.* (1) 1 Scam. 489. (2) 1 Id. 489; Breese, 145. (3) Ante, p. 288. (4) Rev. Stat. 218, Sec. 21. CHAPTER II. POWERS AND DUTIES OF CONSTABLES IN CIVIL PROCEED INGS. I. OF THE SERVICE AND RETURN OF PROCESS, AND HEREIN 1. Service and Return of Summons. Constables are the ministerial officers of courts held by justices of the peace, and are required, as we have already seen,1 to execute all process emanating therefrom, unless the statute shall otherwise direct. The most usual process for the commencement of suit, is that of a summons, which, upon being placed in the hands of the constable, must be served at least three days before the time of trial mentioned therein, by reading the same to the defendant or defendants.2 Form of Constable's Return on Summons. Personally served the within, by reading the same to the within named defendant. Sept. 18th, 1855. Form of Constable's Return when Summons is against two or more, and some are not found. Personally served the within by reading the same to the within named 18-. The within named E. F. not found G. H., Constable. C. D., the in my county. day of Form of Constable's Return when defendant is not found. The within named defendant not found in my county. G. H., Constable. Rev. Stat. 327, Sec. 85. "When any defendant shall evade the service of process, and not listen to the same, or secrete himself, then the officer shall serve the same by leaving a copy at his place of residence, with some white person of the age of ten years or upwards; and in all such cases the constable shall make a special return, when and how served, and the circumstances attending the same; and if the justice shall be satisfied that the defendant evaded the service by reading, and that the party is sufficiently notified and summoned, he shall proceed to hear and determine the case.' Form of Constable's Return on Summons, when served by copy. Served the within, by leaving a copy thereof at the place of residence of the within named defendant, with a white person, upwards of the age of ten years, the defendant having evaded the service of the same. September 18th, 1855. Fees, &c. NORMAN BROWN, Constable. 2. Of the Service and Return of Warrant. The rules which govern the service of this process, have been already noticed to some extent in PART FIRST hereof,' but it may be proper here to add, that for the service of all civil process, every man's dwelling house is inviolable, or, as the early writers express it, is his castle, and an officer has no right to break its outer door, to open it if shut, to lift a latch in order to enter it, or to enter against the owner's command, in order to arrest him, or to levy upon his property and it makes no difference whether the owner be at home or absent. This privilege is intended for the protection of himself and his family, and (1) See ante, pages 48, 49. |