Quimby v. Adams

The opinion of the Court was delivered by

Mellen C. J.

This action is founded on the 9th section of ch. 92 of the revised statutes. The provision relied on is in these words. “ That every Constable, after being chosen, and before he serve any writ or proceed to collect any execution, shall give to the Treasurer of his town a bond in the sum of two hundred dollars, with two sureties, sufficient in the opinion of the Selectmen and Town Clerk, for the faithful performance of his duties and trust, as to all processes by him served and executed.”

Adams was chosen both Collector and Constable of the town of Green, March 19, 1832, for one year: and he was duly sworn as Constable, and on the 26th of the same month, gave the bond of which a copy forms part of the report. The first objection to it is, that it is not in conformity to the provision of the above section, either as to the amount of the penalty or the terms of the condition. It would have been more correct had the bond related simply to the character and duties of the defendant as a Constable ; but as the penalty is more than double the amount of the taxes assessed for that year, and two hundred dollars besides, we cannot consider the bond void on that account. If the bond had been too small, that fact might constitute a good objection. But the penalty is more than sufficient to secure the rights of all concerned, or who could have an interest in it. The second objection is, that the condition in its language, varies from the language of the statute; but the question is, whether the variance is of any importance. Independent of the power given by our statute to Constables to serve writs and executions in certain cases and to a certain amount, they are mere peace officers. They have now both kinds of power. The condition is, that the “ said Moses Adams shall faithfully discharge his duty (as collector of taxes and) as Constable as aforesaid, and all agreeable to the true intent and meaning of the above obligation.” We may, in considering the condition, reject as surplusage, so much of it as is included in brackets; it is then that he shall faithfully discharge his duty as Constable ; which means his whole duty, which certainly includes his duty respecting all legal processes : though those words are not stated in the condition ; the language, as used, is tantamount to the language of the act. The third objection is, that the bond was never approved by the Selectmen and Town clerk, prior to the service of the writs mentioned in the statement of facts, which was in May. The law only requires their official approval of the sufficiency of the sureties ; but it does not require that it should be in writing. The objection is not sustained by fact; for, to save the trouble of a new trial, the Selectmen and Town clerk have all appeared before the Court and testified that soon after the meeting, and some time before any of the writs were served by Adams, they all officially approved of the sureties. Under these circumstances, surely such a penal action as this cannot be sustained.

The plaintiff must be called.