Eustis v. Kidder , 26 Me. 97 ( 1846 )

The opinion of the Court Was drawn up by

Shepley J.

— The action is debt to recover a penalty alleged to have been incurred by a violation of the statute, c. 104, $ 35. There is a special demurrer to the declaration, which contains two counts. Every fact and averment necessary to shew, that the defendant has incurred the penalty, must be found in one of the counts. If found in either, that one will be sufficient.

The first count alleges, that the defendant “ did then and there, in the capacity of a constable of the town of Dixfield aforesaid, have in his custody a writ of attachment in a personal actionand after describing it, further alleges, “ did then and there, at Dixfield aforesaid, in the capacity of constable, as aforesaid, make service of said writ.” It does not allege, that he was a constable of the town of Dixfield. This is a material defect. A person may, without being a constable, act in the capacity of one, and thereby commit an offence punishable by statute c. 158, § 28. But if he should do so, he would not incur a forfeiture under c. 104, <§. 35, by neglecting to give the bond required of a constable.

The second count alleges, that the defendant was a constable of that town, that in that capacity he made service of a writ of attachment in a personal action described, and that “ the said Kidder did not at any time before the service of said writ and process execute a bond in manner and form as required by the statute in such case made and provided, to wit, that the said Kidder did not then or before that time, and before service of said writ as aforesaid, give bond to the inhabitants of his said town of Dixfield in the sum of five hundred dollars, with sureties sufficient in the opinion of the selectmen of said town, with their approval indorsed on said bond in their own hands, for the faithful performance of the duties of his office as to all processes by him served or executed.”

The allegation made in general terms, that he had not executed a bond as required by the statute, is restricted by the scilicet and the subsequent language. Stukely v. Butler, Hob. 171; Skinner v. Andrews, 1 Saund. 170, and note 2.

If the latter allegation may be true, and yet the constable may have performed all the duties required of him by the statute, this count also will be defective, for it may bo, that the defendant has not incurred the forfeiture.

The words of the statute are : — “ Every constable, before he shall serve any writ or execution, shall give bond to the inhabitants of his town in the sum of five hundred dollars with two sureties, sufficient in the opinion of the selectmen of the town, who shall indorse their approval on 'said bond and in their own hands, for the faithful performance of the duties of his office as to all processes by him served or executed.”

All the duties required to be performed by the constable will be prescribed, if the words, “ who shall indorse their approval on said bond and in their own hands,” be omitted. Those words were not introduced to prescribe his duties ; and they might with entire propriety have been introduced in a separate clause. It could not have been the intention to make the constable responsible for the performance of duties required of the selectmen; and to subject him to a penalty for their neglect. It is not essential to the validity of the bond, that the approval of the selectmen should be indorsed upon it. That provision is directory to them, and intended to be beneficial to the constable by affording evidence, that his sureties had been adjudged to be sufficient, and also to those, who might become interested in the bond by shewing, that such adjudication had been formal and deliberate. A provision merely directory cannot constitute a part of the contract, which may be enforced, should the officers required to perform such duty neglect it. Bank of the United States v. Dandridge, 12 Wheat. 81. That case and others alluded to in the opinion of Mr. Justice Story, exhibit instances, where clauses or' phrases in statutes have been held to be directory in cases liable to much more of doubt than the present.

Declaration adjudged bad.