The opinion of the court was delivered by
Bennett, J.By the statute of 1797, the. constables of the several towns of this state have the same powers within their respective towns as are given to the sheriff of the county ; but they had no power to serve any legal process beyond the limits of the town. This continued to be the law up to 1831, when the statute was passed, authorizing the first constable of any town to serve and return legal process in any town within the county to which he belonged. Under this statute, the defendant, who was the first constable of the town of Troy, undertook to justify the taking of the horse in question, in Jay. But, by the proviso to the act of 1831, it is expressly enacted, that the constable shall not, by the provisions of the act, have his precinct extended, “ until the town shall have given their consent, by a vote of the town to that effect, at the annual March meeting of such town, and a record thereof be made in the town clerk’s office.” The act of 1831 does not extend the powers of the first constable except upon the condition specified in its proviso ; and this is strictly a condition precedent, and must have been complied with before the constable can claim an extension of his powers»
Upon no principle can the town meeting of the 31st of March, though held in March, be considered as the annual March meeting. The town as they are made responsible for the negligence of their constable, have a deep interest in the question,and the legislature have wisely provided that this vote shall be passed at the annual March meeting. The town understand that at such meeting this is a part of the appropriate business then to come before them, and it is their duty to *659come prepared to act upon it without any special notice to that éffect in the warning. The vote of the town extending the jurisdiction of the constable throughout the county, at any other meeting than the annual March meeting, is not a compliance with the letter and spirit of the act, and cannot have such effect. It is also necessary that the vote should be recorded. The passage of the vote and making it a part of the records of the proceedings of such meeting, is made indispensable to the conferring of the power. One may as well be omitted as the other.
It may well be questioned whether it was competent for the town clerk, after he had gone out of office, to amend or alter the records of the town by a substitution of an entire new vote, and upon a subject about which there appeared to have been no action. It would seem to -be inconsistent to yield to his successor, who was not the keeper of the records, at the time, this power. But, as it is not necessary, we do not decide this question. The amendment, if properly made, is inoperative upon the rights of these parties. The result, then, is, that the judgment below is reversed, and a new trial granted.