The opinion of the court was delivered by
Isham, J.The object of this suit, is to recover damages which the plaintiff claims to have sustained by the neglect of one Lucius Freeman, elected as constable of that town on the 7th of Márch, 1848.
We learn from the case, that a writ was issued by the plaintiff against J. B. Danforth and others, on which a quantity of pearl-ash was attached by Freeman, as constable. It is not disputed in the case, but that a judgment was duly rendered in the suit upon which the attachment was made. That the property attached, was duly charged on the execution, and that Freeman by whom the attachment was made, neglected to deliver the property to respond the judgment recovered.
*361Neither is it disputed but that Freeman was duly elected constable of the town, and that in every respect he has conformed to the requirements of law, except that no bond had been given by Mm, as constable, to the town until after the service of this writ. And it is claimed on the part of the defense, that no legal attachment of this property was made,’ and that the town cannot be held responsible therefor, nor for ány act of his as constable, until after the bond was executed" This objection proceeds upon the ground, that until the. execution of the bond, he is not clothed with any official authoritytor power. And that the execution and delivery of the bond is a pre-requisite as necessary and essential to give validity to his acts, as his election by the freemen of the town.
The statute makes jt the duty of the towns,' annually to elect their constables; and when elected, within their territorial jurisdiction, there is given them the same powers that are vested in sheriffs in their respective counties. The 27th and 28th Sects, of the Comp. Stat., p. 116, contain the specific provisions upon which the questions in this case are presented, and provide that the several constables, before they enter upon the duties of their office, shall give bonds to the town, in such sums and with such sureties as the selectmen may require. And if he shall refuse to give such bond, his office shall be considered vacant. It will at once be perceived that ample power is given to the towns to protect themselves in their liability, by requiring at once the execution of the bond, and rendering him incapable of entering upon the duties of the office, in case of his refusal. In such an event they are authorized to consider the office as vacant, and proceed to another appointment — or, if the request for the execution of the bond is delayed, it may be made at any time during the year, with the same consequences.
But it is not in their power to vacate the office or treat it as vacated, or suspend the constable in the discharge of his official duties, until he is placed in fault, by a refusal to execute the bonds.
It is evident from the various provisions of the statute, that the bond when given, stands as a security, or indemnity for the town, and for their specific use and benefit only. And like other matters given as personal benefits and rights, may be insisted upon, or waived, at the option of those to whom the right or benefit is given. So long as the selectmen neglect to require the execution *362of the bond, for that period, it must be considered as a waiver of their right, and dispenses with the necessity of its execution by the constable until requested, and the constable not having refused to give bonds,- and his office not having been vacated by any act of the selectmen, he properly can exercise the duties of that office, until rendered vacant by a request and refusal to execute them.
The provisions of the statute are quite specific and definite.— 'The constable derives his official authority from his election, and the statute defining his powers. And he is not required to give bonds, until certain preliminary steps are first taken by the selectmen of the town; they are to specify the amount for which the bond is to be given, name the securities required, and request its due execution. Until these steps are taken, it is impossible for the constable to execute the bond, and as it cannot be given in consequence of the neglect or waiver of the matter by the selectmen, the officer can well execute the duties of the office, until those steps are taken and the request is made, and he stands in the same light, he would stand, if the bond was not required by the statute, for he is not, until those preliminary steps have been taken, under its operation. To give the act a different construction, would put it in the power of the selectmen to deprive him of the benefits of the office, and virtually vacate the appointment, though he has never refused to give the bonds, but on the contrary has ever been ready and willing to execute them.
We think, therefore, in this case, that the officer was authorized to make the attachment, and that the town is responsible for Ms neglect to deliver the property on the execution when demanded.
The evidence offered in mitigation of damages we think, also, was properly rejected. The Stat., p. 253 § 83, provides that personal property attached on mesne process, shall be held to respond the judgment, and for that purpose, the officer is entitled to the custody and possession of the same. And against that specific property, the creditor has a right to proceed until his judgment and execution is satisfied. The case of Tyler v. Ulmer, 12 Mass. R. 163, is decisive on this question.
In that case, the court say that “it would be extremely mischiev- “ ous to permit an officer to excuse himself, or even to alleviate “ the damages, consequent upon a wilful neglect of duty, by show- “ ing that the creditor may still, by a new process, or new execu*363“tion, obtain satisfaction of Ms debt.” The result is, that the judgment of the county court must be affirmed.