After a continuance, for advisement, the opinion of the Court was drawn up by
Weston C. J.A number of objections are taken to the course of proceeding in this case. We are constrained to regard one of them as fatal. The statute for the keeping of watch and ward, stat. qf 1821, c. 125, provides, that the justices and selectmen, to whom the power of establishing a watch is confided, should “ appoint the number qf persons, whereof the same shall consist.” This is an authority, to be exercised by them; and which ■ they cannotj depute to the constable. He is upon this point to take their commands; and has no discretion of his own. It is essential to the legal appointment of a ymtch, that the number should be prescribed. This was not done in the case before us; and in our judgment therefore, the forfeiture, sought to be recovered in this am tion, has not been incurred. The exceptions are accordingly sus-» tained, and the verdict set aside. As the objection is not of a nature to be removed upon another trial, the plaintiffs are to become nonsuit.