Imagens das páginas

residence is unknown.

of the Common


In what district

tachments to be returned.

2. Or, unless such defendant's place of residence is un- Unless place of known to such constable.

$ 3. He shall not be compelled to receive a precept, fee Precept against bill, or order for witness attendance, or other claim against reside in district

may be refused. any person who is known to be and to reside out of his district, except

1. Such precept is in behalf of the Commonwealth, or is Unless in behalf a precept against property in his district.

wealth or against 2. But if a constable shall voluntarily receive such pre- But if received,

his responsibility cept, fee bill, order for witness attendance, or other claim, he and his sureties shall be accountable for the same in like manner as if the person it is against resided or was in his district, or had property therein. § 4. It shall be the duty of the constable to return all Duty as to return

of process. process placed in his hands on or before the return day thereof, under the penalty of five dollars, to be recovered on motion before the court whence it issued, upon proper notice.

$5. Every warrant or attachment in a civil case returna- 1 R. S., 255. ble before a justice, shall be returned in the justices' district warrants and atwithin which the defendant resides.

1. Unless there are several defendants, and then in the Where if there be district of one of them.

2. Or, unless the defendant resides out of the county in or defendant se which process is executed.

3. Or, unless the plaintiff or defendant are of kin to both or if kin to justhe justices in the district.

4. Or, unless with the written consent of the parties.

$ 6. A constable may exercise the duties of his office in May exercise ofany part of the county,

$ 7. He shall not act on any process in which he is per- If personally insonally interested, under the penalty of ten dollars for each act, nor levy on offense. 1. He shall not levy on or sell land, or any interest therein.


May collect his own fee bills. § 1. A constable may distrain for his own fees, or may How fees of colplace the same in another officer's hands for collection.

1. He may distrain for other officers' fees placed in his May distrain for hands for collection.



sides the county


Or written consent.

fice in the entire county.

or sell land!


2. He shall account for officers' fees six months after so When to account placed in his hands.




Sup., 105.
The remedies for
breach of cove-
nant of bond.

on bond exhaustless.

ble on motion.


Remedies against, for defalcation. § 1. Any person injured by a breach of a constable's bond may prosecute an action or motion thereon against the con. stable and his sureties, or any one or more of them, or the personal representative of any one or more of them, jointly, with the survivors, or any of them, for any damages sustained by such person, or for any money collected by him on execution, replevin, or sale bond, order of sale, attachment, distress warrant, order, check, or bill of exchange, note, account, certificate of a witness's claim, or any other evidence of debt or duty, or on any demand or claim, written or verbal, which on proper demand is not paid. (a)

§ 2. The bond shall not be void on any recovery on it; Right of recovery but recovery may be had on it by every person injured by

the acts or omissions of the constable.

$ 3. Ten days' notice, specifying the grounds of a motion, Notice of motion. shall be given. If not executed on all, the motion may pro

ceed against such as are notified.

§ 4. In such cases the plaintiff shall recover the amount recovera- collected by the officer, and interest from the time of de

mand and ten per centum damages thereon, and the costs of his motion or action.

$ 5. A constable and his sureties, or any one of them,

may, by like motion, be rendered liable for the amount of ure to return fi. any execution placed in his hands for collection, and ten per fa.

centum on the amount thereof, for not returning such execution to the office from whence it issued, within twenty days after the return day thereof, without reasonable excuse for such failure.

$ 6. In actions or motions against a constable and his Receipt of con- sureties, or any of them, for money collected by him, his tive evidence of receipt for the demand shall be presumptive evidence, after

the expiration of one hundred and twenty days from its date, that such demand has been collected; but such presumption may be rebutted by other evidence.

$ 7. A constable and his surety shall, in like manner, be Liability for fee liable for any fee bill or other claim placed in his hands for

collection, which he does not collect, and fails, on demand,

to return to the party entitled thereto, with a proper in(a) A demand is indispensable to fix the liability of a constable and his sureties for money collected. (Walters vs. Chism, i Metcalfe, 502; Harris vs. Perry, 2 Bush, 101.)

IR. S., 256.


collection 120 days.



dorsement thereon, within six months from the time it is so placed in his hands for collection.

1. Also, for any injury for failing to collect the same, when Liability for negby proper diligence it might have been collected.

2. He shall state, in receipts given by him, the amount What his receipts paid; for each failure to do so, he shall be fined five dollars. 3. For an illegal charge he shall forfeit his fee, and for Penalty for ille

gal charge. each offense shall be fined five dollars.

must state.


The county court may rule to additional surety

May be ruled to give additional security. § 1. The county court may, at any time, rule a constable 1R. S., 258. to give other or additional sureties.

1. May, on the motion of any of his sureties, rule him to Counter security. give counter security.

2. Ten days' notice, specifying the grounds, must be given Notice. to a constable before a final order shall be made in any such



3. If a constable shall not comply with such rule, the court If rule not com

plied with, office may enter up an order vacating his office.

§ 2. A constable who may vacate or be removed from Duty as to busioffice shall return and account for all claims and papers which are officially in his hands, in the same manner as if he had continued in office.

ness in his hands if removed or of fice vacated.


Miscellaneous Provisions. § 1. Executions, fee bills, orders of witness's attendance, R. S., 258.

, &, and attachments, shall be levied and satisfied by constables, how levied and

satisfied as to priaccording to the priority of time in which they are placed ority of time. in their hands; and they shall, in every case, indorse the time of reception.

§ 2. No constable shall buy, or become interested by con- Not to become intract in, any claim against another put into his hands for in his hands. collection; and any such purchase or contract may be relied on by a defendant in bar of a suit on such claim, or as a ground for vacating a judgment or quashing an execution thereon.

$ 3. Constables shall, after the expiration of their term of Shall retum all office, execute and return all processes or precepts in their replevy or collect hands at the termination of their office, and may replevy or bills after term

. collect all executions and fee bills then in their hands.

process, and may






$ 4. They and their securities shall be liable for all their Liability of sure- official acts, and that counter security may be required, as

provided in this chapter.

$ 5. Quarterly courts have jurisdiction concurrent with Sup., 105. justices' courts of motions under this chapter, and exclusive Jurisdiction quarterly courts of them, of actions and motions where the amount claimed against. is not less than fifty nor more than one hundred dollars, ex

clusive of interest, damages, and costs.

$ 6. It shall be no defense to any action or motion against Sup., 755. a constable or his sureties that the precept, execution, procept, &c., was cess, or other authority under which he acted, or it was his by the plaintiff duty to act, was stayed or in any manner delayed, unless unavailing unless it be in writing. the same was done in writing, signed by the plaintiff or his

agent or attorney.(a)

Defense that pre




§ 1. In the construction of statutes the following rules "State". "U. shall be observed, unless such construction would be inconare construed to sistent with the manifest intent of the Legislature:(6) The

word "State,” when applied to a part of the United States, shall be construed to include the several Territories thereof and the District of Columbia. And the words “United States” shall be also construed to include the District and

Territories aforesaid. "Justice", or

§ 2. The word “justice," or "justices,” shall be construed “Justices”-how construed

as if the words “of the peace” followed. (a) A constable has no right to force open an outer door or window, which is closed and fastened, even though he do not break the lock or catch, in order to make a levy of fieri facias or distress warrant. (Jewell vs. Mills, 3 Bush, 62.)

(6) In giving a construction to a statute, courts will look to the effects and consequences. If its provisions are ambiguous, or the legislative intention doubtful, but if the law is clear, explicit, and free of doubt, the consequences, though evil, can be avoided, not by judicial action, but only by the change of the law itself. (Bosley vs. Mattingly, 14 B. M., 90; see also i Met., 624, 637; 3 Met., 116; 4 Met., 21.)

2. The construction given by the courts to the law on a particular subject, as it heretofore existed, should, in like manner, be given to the law on the same subject, as found in the General Statutes, unless it manifestly appear from the phraseology that a change was intended, not in the language merely, but in the sense. (Allen vs. Ramsey's heirs, 1 Met., 637; Brace vs. Shaw, 16 B. M., 80.)

3. If possible, the courts will give that construction to a statute which will be in harmony with the Constitution. (Waller vs. Martin, 17 B. M., 191.)

4. A proviso must always be construed as having relation to the enacting clause or clauses. (Ditto vs. Geoghegan, 1 Met., 173.)

lic officers to act.

tor, &c.

includes all who are non compos.

calendar month.

means calendar year

Time-how com

$ 3. Words purporting to give authority to three or more Majority of pubpublic officers or other persons shall be construed as giving such authority to a majority of such officers or other persons.

$ 4. The words “personal representatives” shall be con- "Personal represtrued to include the executor or the administrator, or a utor, administrasheriff or other officer who is required by law and is ordered by court to act when no person will qualify as executor or administrator.

$ 5. The words “unsound mind” shall be construed to Unsound mind” include every one who is an idiot, lunatic, non compos, or deranged. $ 6. The word "oath” shall be construed to include an “Oath” includes

affirmation. affirmation in all cases in which an affirmation may be substituted for an oath, and in the like cases, the word “swornshall be construed to include the word “affirm.”

$ 7. The word “month” shall be construed to mean a “Month” means calendar month, and the word "year" a calendar year, and “Year” the word "year" alone shall be equivalent to the expression A. D. "year of our Lord.” $ 8. If a statute requires a notice to be given, or any

puted. other act to be done a certain time before any motion or proceeding, there must be that time, exclusive of the day for such motion or proceeding; but the day on which such notice is given, or such act is done, may be counted as one day and part of the time.

$ 9. If any proceeding is directed by law to take place, If that day hapor any act is directed to be done, on a particular day of a then the next day month, if that day happen to be Sunday, the proceeding shall take place, or the act shall be done, on the next day.

§ 10. If the law authorizes a court, or the proceedings of Adjournment any tribunal or officer, to be adjourned from day to day, an Monday legal. adjournment from Saturday till Monday shall be legal.

$11. “Cattle” includes horse, mule, ass, sheep, hog, or What “Cattle” goat, of any age or sex, bull, cow, calf, and ox; cow includes heifer.

$ 12. A word importing the singular number only, may Singular number extend and be applied to several persons or things as well ral Masculine as to one person or thing, and a word importing the plural females. Per number only, may extend and be applied to one person or tions, &c. thing as well as to several persons or things. A word importing the masculine gender only may extend and be applied to females as well as males; and the word “person"



to corpora

« AnteriorContinuar »