Bell v. Wycoff

Cook, T.,

after stating the case. We sustain his Honor in holding that the cause of his delinquency, as stated in the facts found, was insufficient to excuse defendant from the penalty imposed by law. The impression that the summons was returnable at a later date, to-wit, the latter part of August, was not made by his reading the summons, as he should have done, for the word “August” does not appear therein. The “fifth Monday before the first Monday in September” can not come the latter part of August, so his impression was not obtained from tbe summons which he received and was “commanded” to serve.

Before undertaking to obey the precept, he should have read and learned its contents, and known what he was “commanded” to do. This he neglected and failed to do, for which he was inexcusable, and will have to bear the burden of his own (or his deputy’s) carelessness.

His diligence in undertaking to locate the defendant, and to serve the summons upon him when he should reach the county, was incumbent upon him, and in doing so he only discharged his duty to that extent. But in holding the summons after the return day for the purpose, as he conceived, of performing his duty and accommodating the plaintiff, was a misconception of duty, and does not protect him against the penalty. To accommodate the plaintiff was no part of his duty. An officer should discharge his duties faithfully and impartially, and accommodate his acts and doings to' the requirements of law and his oath of office, and not to aid friends and favorites, or to incur the favor of any particular person or persons. Why a case so utterly devoid of merit should be taken by appeal to this Court, we are unable to conceive.

Affirmed.