Langdon v. Rutland & Washington Railroad ( 1857 )

The opinion of the court was delivered by

Isham, J.

The case of Bowman v. Barnard, 24 Vt. 361, seems decisive upon the question raised on these exceptions. In that case it was held, that a constable derives his official authority from, his election to that office, and from the statute regulating his duties and defining his powers. The execution of a bond to the town for their indemnity is not regarded as a condition precedent to his right to execute those duties. The person so elected can lawfully discharge them until his office is vacated by the selectmen, on Ms refusal to execute a lond to their satisfaction. In this case it appears that Isaac Gibson was duly elected constable of the town of Rutland in March, 1854; that he immediately entered upon the performance of those duties, and continued to discharge them with the knowledge of one or more of the selectmen, from that time until after the service of the writ of replevin, when the bond was given on which this suit is brought. It is stated in the case that, soon after his election, one of the selectmen informed Mr. Gibson that he must give bonds to the town before he acted as constable, and which he then agreed to procure. But it is also stated, that he did in fact procure a bond with sureties to the satisfaction of the selectmen, and by a mutual understanding he was permitted to retain the bond in his possession in order to obtain other signatures, under a request on the part of the selectmen to refrain from doing any important business as constable until the bond was delivered. It is apparent from this request that the office had not been vacated, and that, to some extent, it was expected he would act as constable of the town. The service of the writ of replevin was made under those circumstances, and it was not until after that writ was served, and this bond was taken, that the selectmen notified Mr. Gibson that he must do no further business as constable of the town of Rutland. The execution of a bond to the town is a matter between the constable and the town, and in which third persons have no interest. If no bond is required by the selectmen, or if its execution and delivery for any reason is delayed by consent, the constable elected may, in the mean time, execute the duties of that office, and the town are responsible for his acts until his election is duly vacated by the selectmen. Mr. Gibson, therefore, was authorized to serve that writ of replevin and take this bond; and his neglect to execute á bond to the town for their indemnity constitutes no defense to this action.

Judgment affirmed.