tion, and he cannot retain such property by paying to the constable the excess of value in money.1 In the sale of personal property on execution, the property itself must be present or the sale will be void.2 Form of Notice of Constable's Sale. CONSTABLE'S SALE. Notice is hereby given, that by virtue of an execution issued by E. F., Esquire, a justice of the peace of county, in favor of A. B., and against the goods and chattels of C. D., and to me delivered, I have levied on the following described goods and chattels, to wit: (here describe the property,) which I shall expose for sale at public vendue, at, in said county, on the M., to the highest bidder therefor. Dated this day of, 18—. o'clock day of 18-, at G. H., Constable. Form of Constable's Return on Execution, in case of levy and sale. Executed the within by sale of the property hereon indorsed, the proceeds of which amount to $ My fees retained. Dated, &c. G. H., Constable. Whatever sum is made on sale, he should pay over to the justice on return of the execution; he may, however, pay to the plaintiff the amount of his judgment, and take his receipt therefor. Should the property sell for more than the amount of the execution, the constable should pay the excess to the defendant in execution, and make return accordingly. Form of Constable's Return, when no property is found. No property of the within named C. D., subject to levy, found in my county. Dated, &c. (1) 14 Ill. 84. G. H., Constable. (2) 15 Ill. 58. CHAPTER III. OF THE LIABILITY OF CONSTABLES AND SURETIES. Upon the failure of the constable to pay over any money by him collected or received as provided by the statute, to any person entitled to receive the same, his or her agent, or attorney, such person may proceed against such justice or constable in a summary way, either before the circuit court or some justice of the peace of the proper county, by motion, upon giving to such constable five days' notice of the application; and recover the amount so neglected or refused to be paid, with twenty per cent. damages thereon, for such detention, and shall have execution therefor.1 If any constable shall neglect or fail to return an execution within ten days after its proper return day, or if the demand, debt, or claim, be wholly or in part lost, or if any special damage shall arise to any party by reason of the neglect or refusal to act, or the misfeasance or nonfeasance of any constable in the discharge of any official duty, the party aggrieved may have his action in the circuit court, or, when the amount claimed does not exceed one hundred dollars, before any justice of the peace of the proper county, against such constable and his sureties on the official bond of such constable, and shall recover thereon the amount of said execution, with interest from the date of the judgment upon which the original execution issued.2 The responsibility of the sureties is held to be co-extensive with that of the constable, and that they are liable whenever he is liable to a party in whose favor an execution has been delivered to him; hence an action lies upon the constable's bond or instrument of security, against the constable and his sureties, for the mere neglect to return an execution within the time prescribed by the statute after the return day thereof, and this without showing any moneys collected.s (1) Rev. Stat. 332, Sec. 116. (2) Id. Sec. 118. (3) 10 Wend. 370. The remedy provided by the statute, does not deprive a party of his common law remedy. Therefore, where a constable has collected the money on an execution, and neglects to pay it over to the person entitled to receive the same, or to the justice who issued the execution, an action of assumpsit for money had and received, will lie against the constable to recover the amount collected, without any previous demand being made. So assumpsit lies against a constable for the amount of goods sold by him, though the purchaser to whom they are delivered refuses to pay for them.3 Where a constable or other officer neglects his duty, or abuses the trust reposed in him by law, to the injury or damage of another, an action on the case lies against him in the circuit court, at the suit of the party sustaining the injury. Thus, if a constable neglect to serve a writ or precept delivered to him, this action lies for the injury suffered by such neglect or refusal.5 (1) 10 Johns. 390. (3) 9 Johns. 96. (2) 3 Johns. 182; 1 Wend. 534; 16 East, 274. CHAPTER IV. OF THE POWERS AND DUTIES OF CONSTABLES IN CRIMINAL CASES. I. HIS POWERS GENERALLY. II. OF ARRESTS. I. HIS POWERS GENERALLY. Rev. Stat. 328, Sec. 88. "It shall be the duty of every constable, when any felony or breach of the peace shall be committed in his presence, forthwith to apprehend the person committing the same, and bring him before some justice of the peace, to be dealt with according to law; to suppress all riots and unlawful assemblies, and to keep the peace, and also to serve and execute all warrants, writs, precepts, and other process to him lawfully directed; and generally to do and perform all things appertaining to the office of constable within this State." The office of constable is either ministerial in obeying warrants and precepts, or is original as a conservator of the peace, at common law, or by virtue of particular acts of the legislature. By the original and inherent power which he possesses, he may, for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender, without warrant.1 So if a felony has been committed, a constable, or any peace officer, may lawfully apprehend a supposed offender, upon the information of others, without any positive charge, or his own knowledge of the circumstances on which the suspicion is founded. In general, however, a constable cannot of his own accord, and without an express charge or warrant, justify (1) 1 Hale, 587. (2) 1 East's P. C. 301; 6 T. R. 315; 6 Bin. 316. the arrest of a supposed offender, upon suspicion of his guilt, unless he can show that a felony was committed by some person, as well as the reasonableness of the suspicion that the party imprisoned is guilty.1 2 So a constable may, without warrant, apprehend any one for a breach of the peace, in his presence, and detain him until he can bring him before a magistrate. A constable may, also, upon his own view, lawfully interpose to prevent a breach of the peace, or to quiet an affray ; and if he or any of his assistants, whether commanded or not, be killed, it will be murder in all who take part in the assistance, there being either express or implied notification of the character in which he interposed.3 II. OF ARRESTS. An arrest, in criminal cases, is the apprehending or detaining a person, in order that he may be forthcoming to answer to a crime alleged against him, or of which he is suspected to be guilty. To this arrest all persons without distinction are liable, when accused of a criminal offense. The exemptions which exist in civil cases, here cease to operate. It is laid down that no person can be arrested unless charged with such a crime as will at least justify holding him to bail when taken." To constitute an arrest, the party must be actually touched by the officer, or confined in a room, or submit himself, by words or actions, to be in custody. The mere giving in charge, or causing him voluntarily to appear before a magistrate, without the person being taken into actual custody, will not amount to an arrest; for bare words in this respect, will not be of any avail. But no manual touching of the body, or actual force, is necessary, in order to constitute an arrest; it is sufficient if the party is within the power of the officer, and submits to the arrest. Yet, it is said to be better in all cases to touch the prisoner's person, in order to complete the arrest; taking care, at the same time, to use no greater force or constraint than is necessary for his safe custody; the degree of which will depend upon the particular circum (1) 4 Esp. 80; 1 Chit. Crim. L. 18. (3) 1 East's P. C. 303. (5) 4 Bl. Com. 289. (2) Hale's P. C. 587; 8 Wend. 384. (6) 1 Chit. Crim. L. 48; Davis' Just. 64; 1 East's P. C. 330. (7) Barb. Crim. L. 581, and authorities cited. |