Stacey v. Graves

WaltoN, J.

The E. S., c. 80, § 43, declare that before a constable serves any process, "he shall give bond to the inhabitants of the town in the smn of five hundred dollars, with two sureties, approved by the municipal officers thereof, who shall indorse their approval thereon in their own hands, for the faithful performance of the duties of his office, as to all processes by him served or executed; and for every process he serves before giving such bond, he shall forfeit not less than twenty, nor more than fifty dollars, to the use of any person suing therefor.”

This is an action to recover the penalty here provided for. The first question is whether the clerk of a city is an officer to whom such a bond may in the first instance be properly delivered. We think lie is. It will be noticed that the statute is silent as to whom the bond shall be delivered. It is to be approved by the municipal officers, which, in the case of cities, means the mayor and aldermen. R. S., c. 1, § 4, cl. XXIII. The city clerk is their clerk and he lias the custody and care of their papers. We think a delivery to him is, in contemplation of law, a delivery to the board of aldermen'.

The next question is whether the penalty is incurred if a constable serves a writ after delivery of his bond and before it is approved. If was decided in Eustis v. Kidder, 26 Maine, 97, that it is not. It was there held that when a constable has executed and delivered a good and sufficient bond, he lias performed all wbicb the statute requires of him. "It could not have boon the intention,” say the court, "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 will be noticed that the language of the statute is that "for every process he serves before giving such bond, he shall forfeit,” etc. It does not say that for every process he shall serve before such bond is approved, be shall forfeit the sum named. In this particular the statute differs from the one under consideration in Rounds v. Mansfield, 38 Maine, 586, and Rounds v. Bangor, 46 Maine, 541, cited by plaintiff’s counsel. In these cases it was held that a pound-keeper’s bond must be approved before he could act, because such was the express requirement of the statute. The language of the statute was that the pound-keeper should give a bond with sufficient sureties " to be approved by the aldermen or selectmen, for the faithful performance of the duties of his office, before he shall be entitled to act as such pound-keeper.” The pound-keeper cannot lawffully act till his bond is approved. The constable may lawfully act as soon as his bond is given. This distinction is pointed out by the court in Rounds v. Mansfield, 38 Maine, 586. There is, therefore, no conflict between these cases, and the case of Eustis v. Kidder, 26 Maine, 97. The results differ because the statutes which give the actions differ.

Exceptions overruled.

Judgment for defendant.

Appleton, C. J., Barrows, Danfoéti-i, Virgin and Syaionds, JJ., concurred.