Law Library 
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 The constable's guide :being a concise t 
 
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OJnntf U IGam i^rlynnl ICibtaty 
 
THE 
 
 CONSTABLE'S GUIDE 
 
 CONCISE TKEATISE ON THE POWERS AND DUTIES OF 
 CONSTABLES 
 
 STATE OF NEW YORK: 
 
 TO WBICH IS ASDSD 
 
 AN APPENDIX, 
 
 CONTAINING MOST OP THE PRACTICAL EOEMS NECES- 
 
 SAET TO BE USED BY THfiM IN THEIK 
 
 SEYDEAL DUTIES. 
 
 Bt Hr SrMg^CALL, 
 
 COUNSELLOB-AT-LA-W. 
 
 SECOND EDITION. 
 
 ALBANY : 
 
 WILLIAM GOULD & SON, LAW BOOKSELLERS. 
 
 1869. 
 
Entered according to Act of Congress, in the year one thonsand eight 
 hundred and sixty-two, 
 
 Bt WILLIAM GOULD, 
 
 In the Clerk's office of the District Court of the United States for the 
 Northern District of New York. 
 
 WEED, PARSONS & COMPANY, 
 
 PHINTEES AND STEEEOTTPERS. 
 
PREFACE. 
 
 The duties, powers and responsibilities of Constables in 
 tlie State of New York, have ever been large and im- 
 portant, and they have been much enlarged by the 
 recent acts of the Legislature, increasing the jurisdiction 
 of justices' courts. The works, which were some tinfts- 
 since published with reference to Constables, their powers 
 and duties, have been for several years out of print, and 
 a work properly adapted to the use of Constables has 
 been a long time demanded. ^^ 
 
 The changes which have been made in the statutes, 
 with reference to the powers of Cbnstables, are very 
 many, while the decisions of our several courts have 
 served to elucidate many things which were formerly 
 doubtful or uncertain; To collect these, and arrange 
 tliem in proper order, has been a work requiring con- 
 siderable labor and care. That some decisions may 
 have been overlooked, amid the many reports which we 
 now have, is possible, yet the Constable will no doubt 
 lind in the following pages all the instruction needed in 
 the ordinary and responsible duties of his office. 
 
An appendix of forms has been added, in order that 
 the officer may so inform himself as to their form and 
 character, as to be able readily to determine whether 
 or not the several processes put into his hands are valid 
 and sufficient. 
 
 The kind favor which has been extended to the 
 author's previous works, he trusts, will be extended to 
 the present, hoping that in future editions he may be 
 able to supply any deficiencies that may be found in this. 
 
NOTE. 
 
 Among the various authors which have been consulted in 
 preparing the present work, the following will be found 
 referred to on the different pages : 
 
 Abbott's Practice Eeports: Abb. — Allen on Sheriffs: 
 Allen. — Barbour's Criminal Law: Bar. 0. L. — Barbour's 
 Superior Court Reports: Barb. — Barbour's Chancery Ee- 
 ports: Barb. Ch. — Barnwell and Creswell Eeports: Barn. 
 & Cres., or, B. & C. — Blackstone's Commentaries : Bl. Com. 
 
 — Bouvier's Law Dictionary : Bouv. L. D. — Caines' Cases : 
 Caines. — Carrington and Caines' Eeports : Car. & P., or C. & 
 P. — Chitty's Criminal Law : Chit. Cr. L. — Coke upon Lit- 
 tleton : Co. Lit. — Coke's Eeports : Co. — Comstock's Ee- 
 ports : Com. — Constitution of the United States : Const. U. 
 S. — Cowen's Eeports : Cow. — Cowen's Treatise : Cow. Tr. 
 
 — Cowper's Eeports: Cowp. — Crocker on Sheriffs : Crock. 
 
 — Croke's.Eeports : Cro. BUz. — Denio's Eeports : Denio. — 
 Duer's Superior Court Eeports : Duer. — Dyer. — East's Crown 
 Law — East's C. L. — Bspinasse Eeports: Esp. — Graham's 
 Practice: Gra. Prac. — Hale's Pleas of the Crown: Hale's 
 P. C— Hawkins' Pleas of the Crown: Hawk. P. C — 
 Hill's Eeports : Hill. — Howard's Practice Eeports : How. — 
 Johnson's Cases : John. Ca. — Johnson's Eeports: John. — 
 Kernan's Eeports: Ker. — Lord Eaymond's Eeports : Ld. 
 Eay. — Massachusetts Eeports: Mass; — Meeson and Wels- 
 by's Eeports : M. & W. — Metcalf 's Eeports : Met. — 
 Modern Eeports: Mod. — Moody's Circuit Court Eeports: 
 Moody 0. C. — Peters' Eeports : Pet. — Eevised Statutes: 
 E. S. (The fifth edition has been used, and the marginal 
 
 1* 
 
VI NOTE. 
 
 paging is enclosed in brackets.) — Eoscoe's Criminal Evi- 
 dence: Ros. Or. Ev. — Russell on Crimes : Russ. on Cri. — 
 Salkeld's Reports : Salk. — Sandford's Superior Court Re- 
 ports: Sand. — Selden's Reports: Sel. — Selwya's Nisi 
 Prius: Selw. N. P.— E. D. Smith's Superior Court Re- 
 ports: B. D. Smitli. — Southard's Reports: South. — 
 Taunton's Report : Taunt. — Term Reports : T. R. — Wen- 
 dell's Reports: Wen. — Wilcock's Office of Constable. 
 
 The edition of the R. S., referred to, is the third edition, 
 with the marginal paging in brackets. 
 
CONTENTS 
 
 INTEODUCTORT CHAPTER. 
 Of the office of Constable, 8 
 
 CHAPTER I. 
 Election, duration, qualification of office of Constable, 13 
 
 CHAPTER II. 
 Duties of Constables as officers of the several Courts, . . 25 
 
 CHAPTER III. 
 Power and duties of Constables as officers in Justices' 
 Court, 28 
 
 CHAPTER IT. 
 Of the powers and duties of Constables in the execution 
 of process in various proceedings cognizable by a 
 Justice of the Peace, 95 
 
 CHAPTER V. 
 Powers and duties in miscellaneous matters, 117 
 
 CHAPTER VI. 
 Duties as a peace officer, and in criminal proceedings, 124 
 
Vm CONTENTS. 
 
 CHAPTER VII. 
 Certain prohibitions and penalties pertaining to the 
 office of Constables, 143 
 
 CHAPTER Vin. 
 Fees of Constables, 153 
 
 A.PPENDIX OP FORMS 161 
 
THE CONSTABLE'S GUIDE. 
 
 INTEODUCTIOK 
 
 OF THE OFFICE OF CONST iBLE. 
 
 The office of constable is one of importance as 
 well as of great antiquity. When Alfred had pro- 
 tected his kingdom from the incursions of the 
 Danes, he turned his attention to secure it from 
 internal tumults, and to exterminate the nume- 
 rous bands of robbers which had become formida- 
 ble during the anarchy of preceding years. For 
 this purpose he divided the kingdom into coun- 
 ties ; the counties into hundreds ; and the hun- 
 dreds into tenths or tithings, consisting of ten fam- 
 ilies each. The chief officer of the tithing was 
 called a tithing-man, bors-holder, head-borough, 
 third-borough, borough-head, first-pledge, and 
 chief pledge. 
 
 When the Normans invaded the country, they 
 introduced the feudal system in all its details, and 
 the Anglo-Saxon institutions yielded in all parts 
 of the kingdom to the jurisdiction assumed by the 
 
10 TUB constable's guide. 
 
 military leaders. The courts leet, wliicli had been 
 throughout the country the courts of the people, 
 became in effect, the courts of the lords of the fran- 
 chise, in which the barons held by royal grant 
 almost the same authority as the king in those 
 which still remained in his hands ; the only pub- 
 lic tribunals being those of justices in eyre, and of 
 a few incorporated towns. Under this system of 
 government were appointed a series of ofS.cers from 
 the constable of the kingdom, who was one of the 
 great officers of state, the constables or governors 
 of the king's royal towns and castles, which were 
 held in capite^, and the constables of the Earls Pala- 
 tine, who exercised an acknowledged regal right, 
 and had the authority both of the constables of the 
 county or palatinate, and tke constables of the cas- 
 tles, down to the constable of each, feudal chief, who 
 was governor of his territory ; and the constable 
 of his towns and castles ; until the district of every 
 baron presented the mimickrj'' of a royal realm, 
 with all the officers necessary to command the 
 retainer, administer the laws, and keep the peace 
 of the petty king. Constables of towns and cas- 
 tles at first possessed a judicial character and had 
 very extensive authority. (Willcock's Office of 
 Constable.) 
 
 The power of the Lord Constable o^f England 
 was at one time so extensive that it was consid- 
 ered too great for any subject to hold. The office 
 was for a number of years hereditarj'-, until Edward, 
 
THE CONSTABLES GUIDE. 11 
 
 Duke of Buokingliam, being attainted of kigli trea- 
 son, Anno 13 Hen. YIII, tlie of&ce became forfeited 
 to the crown, and was never afterwards granted, 
 but to be exercised at a coronation. Says Gwyn, 
 " tbe court of the Constable and Marshall deter- 
 mineth con tracts -touching deeds of arms out of the 
 realm upon land, and handleth things concerning 
 war within the realm, as combats, blasons of 
 armory, &c., which cannot be determined by the 
 common law ; and in these matters is commonly 
 guided by the civil law." The power and juris- 
 diction originally held by the constables were 
 limite'd and restricted by repeated acts of parlia 
 ment until they became mere ministerial officers 
 with powers similar to those they now possess. 
 (Jacob's Law Diet, art. Constables.) 
 
 The colonial assembly provided for the election 
 of constables in the several towns, with powers and 
 duties similar to the English constables. The first 
 constitution of the state, adopted in 1777, provided, 
 among other officers, that constables, heretofore 
 eligible by the people, shall always continue to be 
 so eligible, in the manner directed by the present or 
 future acts of the legislature." The two succeed- 
 ing constitutions provided, that all officers hereto- 
 fore elective by the people, shall continue to be 
 elected, and all officers, whose offices may hereafter 
 be created bylaw, shall be elected by the people, or 
 appointed, as the legislature may direct. Under 
 these provisions, the towns continue to elect their 
 
12 THE constable's GUIDE. 
 
 constables as they have done for more than a cen- 
 tury: while the new offices of constables, which 
 have been created in many of our cities and vil- 
 lages, are in part elected and in part appointed as 
 the statutes creating such offices direct 
 
CHAPTER I. 
 
 ELECTION, DURATION AND QUALIFICATION OF OFFICE OP 
 CONSTABLE. 
 
 Ant person is eligible to the office of constable who is 
 an elector of the town from which he shall be chosen. 
 (1 R. S., 825 [345.]) 
 
 The constitution fixes the qualification of electors as 
 follows : Every male citizen of the age of twenty-one 
 years, who shall have been a citizen for ten days, and. 
 an inhabitant of this State one year next preceding an 
 election, and for the last four months a resident of the 
 county where he may offer his vote, shall be entitled to 
 vote at such election, in the election district of which 
 he shall at the time be a resident, and not elsewhere, for 
 all officers that now are or hereafter may be elective by 
 the people ; but such citizen shall have been for thirty 
 days next preceding the election, a resident of the district 
 from which the officer is to be chosen for whom he 
 offers his vote. But no man of color, unless he shall 
 have been for three years a citizen of this State, and for 
 one year next preceding any election, shall have been 
 seised and possessed of a freehold estate of the value of 
 two hundred and fifty dollars over and above all debts 
 and incumbrances charged thereon, and shall have been 
 actually rated and paid a tax thereon, shall be entitled 
 to vote at such election." (Art. 2, Sec. 1.) 
 2 
 
14 THE constable's GUIDE. 
 
 Ill the several cities and villages of the State consta- 
 bles are elected or appointed according to the provisions 
 of their respective charters ; but in the towns they are 
 elected by ballot at the tovfn meetings held therein 
 annually. (1 R. S., 821 [345.]) 
 
 The electors of each town have the power at their 
 annual town naeeting to determine what number of con- 
 stables they will elect, not exceeding five for each town, 
 (1 R. S., 815 and 817.) And this determination must 
 be by a formal vote or resolution of the electors, in the 
 same manner that they express their will on other sub- 
 jects. Where there is no limitation of the number by 
 such formal resolution, and more than five persons are 
 voted for, the five having the greatest number of votes 
 are entitled to discharge the duties of, and receive the 
 emolument of the office. {People v. Adams, 9 Wend. 
 333.) And if the electors limit the number of consta- 
 bles to be chosen to four, ballots containing the names 
 of more than four persons designated as voted for, for 
 the office of constables cannot be canvassed, but must be 
 rejected. {People v. Loomis, 8 Wend., 396 ; 1 R. S., 
 427; Laws of 1842, eh. 130.) 
 
 A poll list is to be kept by the clerk of the meeting, 
 on which shall be entered the name of each person 
 ■whose vote shall be received, and if it shall appear that 
 the name of the person elected has not been entered on 
 such poll list as a voter, the clerk of such town meeting, 
 ■within ten days thereafter, shall transmit to such person 
 a notice of his election, (1 R. S., 821, 823 [343.J) 
 
 If any town shall neglect at its annual town meeting 
 to choose constables, it is the duty of any three justices 
 of the peace of the town, by warrant under their hands 
 
THE constable's GUIDE. 15 
 
 and seals, to appoint such officers, and the persons so 
 appointed shall hold their respective oflTices until others 
 are chosen or appointed in their places, and shall have 
 the same powers, and be subject to the same duties and 
 penalties, as if they had been duly chosen by the elec- 
 tors. So, too, if the oflBce shall become vacant by death, 
 resignation, removal or refusal to serve, constables are 
 to be appointed by three justices as above mentioned. 
 (1 R. S., 828 ; Wildy agtWashburn,!^ John!, 49 ; Peo- 
 ple V. Van Home, 18 Wend., 515.) The justices making- 
 such appointment shall cause such warrant to be forth- 
 with filed in the office of the town clerk, who shall forth- 
 with give notice to the person appointed ; if, when such 
 vacancj' shall occur, there shall be less than three jus- 
 tices residing in the town in vvhich such vacancy shall 
 occur, the justice or justices residing in such town may 
 associate with themselves one or more justices of the 
 peace from any adjoining town as may be necessary to 
 make the number of three ; and such three justices shall 
 have the like power to fill such vacancy as if they were 
 respectively justices of the town in which the vacancy 
 occurred. (1 E. S., 829; Laws of 1830, ch. 320, § 3.) 
 
 It is not necessary that a vote should be passed each 
 year limiting the number of constables to be elected in 
 the town, for, when the number to be 'elected has once 
 been fixed, by a vote of the town, it will be a valid 
 determination for subsequent years, and until such town 
 shall, at a, regular town meeting, determine on the elec- 
 tion of a different number. 
 
 Vacancies in the oflSce of constables in the cities and 
 villages of this State are generally filled by the com- 
 mon councils of such cities, or by the boards of trustees 
 
16 TUB constable's guide. 
 
 of such villages, in accordance with their respective 
 charters. In the city of Albany the police consta- 
 bles, whose duties relate to criminal proceedings, are 
 appointed and their vacancies filled by the Board of 
 Police. (Laws of 1865, chap. 554, p. 1097.) And the 
 constables are elected by the electors, one constable in 
 each ward annually, and in case there shall be any 
 vacancy in the office of any constable to be elected by 
 the qualified voters, in either of the wards of the city 
 for the term of two weeks or more, it shall be lawful 
 for the justices of the justices' court to supply such 
 vacancy, in the same manner that any three justices 
 fill vacancies in the office of constable in the several 
 towns. (Laws of 1844, chap. 34'7, p. 531.) 
 
 Every person chosen or appointed to the office of 
 constable, before he enters on the duties of his office, 
 and within eight days after he shall be notified of his 
 election or appointment, shall take and subscribe the 
 oath of office prescribed by the constitution. (1 R. S., 
 826.) This oath of office may be taken before any 
 judge of any court of record, any justice of the peace 
 any commissioner of deeds, or before any clerk of any 
 court of record, or it may be subscribed and sworn 
 before the town clerk of the town in which such officer 
 shall be elected, and wnen taken by the town clerk 
 it shall be administered and certified without fee or 
 reward. The certificate of oath of office shall be filed 
 in the office of the town clerk. And if the person 
 chosen or appointed constable shall not take and sub- 
 scribe such oath, and cause the certificate thereof to be 
 filed as above required, such neglect shall be deemed a 
 refusal to serve. (1 R. S., 825.) And the town clerk 
 
THE constable's GUIDE. 17 
 
 is to give notice of such neglect to the justices of the 
 town, and if he enter upon the duties of his office before 
 he shall have taken such oath he shall forfeit to the 
 town the sum of fifty dollars. (Id., 827 [347.]) 
 
 Before entering upon the duties of his office, and 
 within eight days after he shall be notified of his elec- 
 tion or appointment, the person elected, or appointed 
 constable shall execute in the presence of the supervisor 
 or town clerk of the town, with one or more sureties to 
 be. approved of by such supervisor or town clerk, an 
 instrument in writing, by which such constable and his 
 sureties shall jointly and severally agree to pay to each 
 and every person who may be entitled thereto, all such 
 sums of money as the said constable may become liable 
 to pay on account of any execution which shall be 
 delivered to him for collection. The supervisor or town 
 clerk shall indorse on such instrument, his approbation 
 of the sureties therein named, and shall then cause the 
 same to be filed in the office of the town clerk, and a 
 copy of such instrument, certified by the town clerk, 
 shall be presumptive evidence in all courts of the execu- 
 tion thereof, by such constable and his sureties. (1 R. S., 
 826 [346.]) 
 
 It is not necessary that this instrument in writing 
 should be in any particular form, as the statute prescribes 
 what shall be the substance of the instrument, but is silent 
 as to its form. The supreme court decided as early as 
 1822, that a penal bond to the people would be a com- 
 pliance with the statute, though it is not necessary that 
 it should be thus executed. [People v. Holmes, 2 Wend., 
 281.) A bond given to the people of the county was 
 held in the case of Warner v. Racey (20 Johns. R., 74), 
 2* 
 
J 8 THE CONSTABLE S GUIDE. . 
 
 to be wrong; but the supreme court afterwards in 
 reviewing that case, say : " The bond in that case was 
 payable to the people of Niagara county, which was 
 clearly wrong, and the court say, that it should be in 
 the name of the people of the State of New York. This 
 ■was said obiter, and, undoubtedly without much exam- 
 ination, " for the statute determines that the instrument 
 should be in such a shape that any person aggrieved 
 may maintain a suit thereon. {Button v. Kelsey et al., 
 2 Wend., 615.) And the best form is a simple agreement 
 without any penalty, to pay to any person who might 
 be aggrieved by the constable's neglect of duty. {People 
 V. Holmes, 5 Wend., 191, see also Fellows v. Gill- 
 man, 4 Id., 414.) 
 
 The statute declares that the bond shall be filed within 
 ten days after the election, and before the constable enters 
 upon the duties of his ofiBce. [Dutton v. Kelsey et al., 
 2 Wend., 615.) And it cannot be doubted that the con- 
 stable himself would be responsible for any act done by 
 him, before filing the bond. The statute being direc- 
 tory to the officer himself, be cannot take advantage of 
 his own omissions. Nor is there any reason why the 
 sureties should not be liable, notwithstanding the want 
 of compliance with the statute provisions, as where the 
 town clerk neglects to indorse his approval of the sure- 
 ties. Their signature is all that is necessary to a pro- 
 per instrument to make them liable ; and they cannot 
 object that the instrument has not been sealed nor in 
 the form contained in the statute. If the bond is not 
 approved, and filed, the omission might be considered a 
 refusal to serve, and the vacancy might be filled ; but 
 
THE COKSTABLB's GUIDE. 19 
 
 such a neglect would not relieve tlie sureties from their 
 liability. {SMUnger v. Tendes, 12 Wend., 306.) 
 
 Formerly in bringing a suit against the sureties on the 
 constable's bond, it was necessary to set forth in the com- 
 plaint all the facts necessary to give jurisdiction to the 
 justice in the action in the cause in which the execution 
 was issued, wherein the constable was in fault, a mere 
 general averment of jurisdiction in the magistrate was 
 not sufficient (Lawton v. JSrwin, 9 Wend., 233, and 
 Cornell v. Barnes, 1 Hill, 35), but since the Code, §161, 
 it shall not be necessary to state the facts conferring ju- 
 risdiction, but such judgment or determination may be 
 stated to have been duly given or made. If such alle- 
 gation be controverted, the party pleading shall be bound 
 to establish, on the trial, the facts conferring jurisdic- 
 tion. (Hunt V. Butcher, 13 How., 538.) 
 
 The appointment of a constable is a judicial act ; for 
 the justices must first determine and adjudge that there 
 is a vacancy in the office, and that the town neglected 
 to fill it up. And the fact of the appointment is not 
 traversable collaterally, or in a collateral action. The 
 appointment remains valid until it be set aside or 
 quashed in the regular course, upon certiorari. ( Wood 
 V. Peake, 8 Johns., 69.) 
 
 Constables hold their offices for one year, and until 
 others are chosen or appointed in their places. (1 R. S., 
 828.) And the election of one or more constables at an 
 annual town meeting will supersede all those who were 
 elected the previous year, as where a town at an annual 
 town meeting had determined there should be three 
 constables elected, and at an annual town meeting there- 
 after without passing any specific resolution limiting the 
 
20 THE CON-STABLb's GUIDE. 
 
 number of constables to a less number, elected only two 
 constables, it was held that all the three constables 
 elected the previous year were ousted. {The People 
 V.Jones, 11 Wend., 81.) 
 
 The office of constable becomes vacant on the hap- 
 pening of either of the following events : 
 
 1st. The expiration of the term for which the incum- 
 bent was elected, and the election or appointment of 
 another to supply his place, and the qualification of the 
 person so elected or appointed. 
 
 2d. The death of the incumbent. 
 
 3d. Eesignation. 
 
 4th. Kemoval from office. 
 
 5th. Eemoval from the town for which he shall have 
 been chosen or appointed. 
 
 6th. His conviction of an infamous crime, or such a 
 crime as would have made higj it eligible to the office. 
 
 Ith. His neglect to take 'the oath of office, and file 
 the security required by law within the time prescribed 
 by statute. 
 
 8th. His acceptance of another office, the duties of 
 which latter office are incompatible with the duties of 
 the office of constable. 
 
 Any three justices of the peace of a town, may, for 
 sufficient cause, shown to them, accept the resignation of 
 a constable of their town; and whenever they shall 
 accept any such resignation, they shall forthwith give 
 notice thereof to the town clerk of the town. (1 E. S, 
 828.) If such vacancy is not filled within fifteen days 
 from such resignation by election at an annual town 
 meeting,, then such vacancy may be filled as above pro- 
 vided. 
 
THE constable's GUIDE. 21 
 
 Every constable who shall demand or receive any re- 
 ward, gratuity, or valuable thing, to procure, assist, 
 connive at, or permit any escape of any prisoner in his 
 custody, shall be deemed guilty of a misdemeanor, and, 
 if convicted therefor, shall forfeit his office and be for- 
 ever thereafter incapable of executing the same. (3 R. 
 S., 737 [438.]) 
 
 So, too, if any constable shall ask or receive any 
 money or valuable thing from a defendant, or any other 
 person, as a consideration, reward or inducement for 
 omitting to arrest any defendant, or to carry him before 
 any justice ; or for delaying to take any party to prison ; 
 or for postponing the sale of any property ; or for omit- 
 ting or delaying the execution of any duty pertaining to 
 his office, shall be deemed guilty of a misdemeanor, and, 
 on conviction, shall be subject to fine or imprisonment, 
 or both, in the discretion of the court. Every such con 
 viction shall operate as a forfeiture of the office of con 
 stable. 
 
 So, too, if a constable shall, directly or indirectly, buy, 
 or be interested in buying, any bond, note or other 
 demand, or cause of action, for the purpose of commenc- 
 ing any suit thereon before a justice ; or if either before 
 or after suit brought, he shall. lend or advance, or pro- 
 cure to be lent or advanced, any money or other valua- 
 ble thing to any person, in consideration of, or as a 
 reward for, or inducement to, the placing or having 
 placed in the hands of such constable, any debt, demand 
 or cause of action whatever, for prosecution or collec- 
 tion, he shall be' deemed in like manner guilty of a mis- 
 demeanor, aiid, on conviction, shall be subject to fine 
 and imprisonment, or both, in discretion of the court; 
 
22 THE constable's guide. 
 
 and his conviction shall operate as a forfeiture of his 
 office. (3 R. S., 454, 455 [267.]) 
 
 It must appear on the trial of the person claimed to 
 have forfeited his right to the oflBce of constable under 
 the statute above referred to, that he was constable at the 
 time of his purchase of the demand, and that he bought 
 the demand for the purpose of commencing a suit thereon. 
 The mere purchase of a -chose in action is not of itself 
 sufficient evidence of the intent mentioned in the statute, 
 but that intent must be proved. ( Warren agt. ITelmer, 
 8 How., 420.) The object of the statute prohibiting 
 the purchase of claims, demands and choses in action 
 by constables, (fee, for the purpose of bringing suit 
 thereon, was to prevent constables from purchasing debts 
 or other things in action, in order to obtain costs by 
 prosecuting the same ; and was not intended to prevent 
 such a purchase for the honest purpose of protecting some 
 other important right of the assignee. (See Baldwin v. 
 Latson, 2 Barb. Ch., 306.) 
 
 If a person, while holding the office of constable, 
 should be sentenced for a felony, he would forfeit his 
 office, and would be forever thereafter prohibited from 
 holding the office, unless he shall have been pardoned 
 before or after his term of imprisonment has expired, 
 and restored by pardon to all the rights of a citizen. 
 (1 R. S., 418, and 3 R. S., 988.) 
 
 If any constable shall have collected any money 
 on execution, and a recovery therefor shall have been 
 had against his sureties, upon a complaint thereof being 
 made, to any three justices of the same town, they shall 
 summon such constable before them, to show cause why 
 he should not be removed from his office. If such com- 
 
THE constable's GUIDE. 23 
 
 plaint be established to the satisfaction of such justices, 
 or of any two of them, after a hearing of the parties, or 
 after the refusal or neglect of the constable to appear 
 upon such summons, they shall, by an instrument under 
 their hands, remove such constable from his office, 
 assigning therein the reason for such removal, and shall 
 file the same in the office of the town clerk, who shall 
 forthwith cause a. certified copy thereof to be served on 
 such constable. Upon the service of a copy of such 
 instrument, certified by the town clerk, on the consta- 
 ble named therein, such constable shall cease to have 
 any power or authority as such, and his office shall be 
 deemed vacant. (3 E. S., 460 [273.]) 
 
 Notwithstanding the neglect, of a person elected or 
 appointed constable,, to file the constitutional oath of 
 office and the proper security within the time pre- 
 scribed by the statute is a legal refusal to accept the 
 office, yet if the person enter upon the duties of the 
 office, without such filing, he will be considered de facto 
 a constable, because he came into his office by color of 
 title, and it is well settled that the acts, done by such an 
 officer are as valid, so far as the public or the rights of 
 third persons are concerned, as though he had been an 
 officer de jure, and that the title of the officer cannot 
 be collaterally inquired into ; it can be questioned only 
 by a direct proceeding against the officer, by information 
 in the nature of a quo warranto. [Greenleaf v. Low, 4 
 Denio, lYO.) But if the person were suing to recover 
 damages for an assault upon him as an officer, it would 
 probably be a good answer to the action that he was 
 not a legal officer, but a wrongdoer, who might be re- 
 sisted. And clearly, he cannot recover fees or set up 
 
24 THE constable's guide. 
 
 any right of property on the ground that he is an officer 
 de facto, unless he be also an officer Ae jure. {The People 
 V. Hopson, 1 Denio, 579.) 
 
 A constable is not prohibited from holding any other 
 office, but if he should, while holding the office of con- 
 stable, accept another office, the duties of -which are 
 incompatible with his office as constable, the acceptance 
 of such office would be a resignation of his office of 
 constable. 
 
CHAPTER II. 
 
 DUTIES OF CONSTABLES AS OFFICERS OF THE SEVERAL 
 COURTS. 
 
 It is the duty of the sheriff of each comity in this 
 State, -within a reasonable time before the sitting of 
 any circuit court, court of oyer and terminer, county 
 court or court of sessions, to summon personally so 
 many constables of his county as he may have been 
 directed to summon, by the court or the presiding judge 
 thereof, to appear and attend upon the said court during 
 its sitting ; if no direction shall have been given by such 
 court or its presiding judge, the sheriff shall in like 
 manner summon so many constables as he may deem 
 necessary to attend the sittings of the court ; and every 
 constable so summoned shall attend the sitting of such 
 court upon pain of being fined for every day's neglect 
 a sum not exceeding five dollars. (3 E. S., 479 [289.]) 
 
 And in every county in which any term of the court 
 of appeals or of the supreme court shall be held, the 
 sheriff is to summon two constables to attend the same. 
 (3 R. S., 278; Laws of 1847, ch. 429.) 
 
 It is the duty of the constables so attending to take 
 
 charge of the court room, see that every thing is kept 
 
 in proper order, and to obey the orders and directions 
 
 of the court and of the sheriff, and to act as crier of the 
 
 3 
 
20 TUB constable's guide. 
 
 court in his absence, or in case no crier shall have been 
 appointed. 
 
 Constables while attending the sittings of the court 
 as its officers are privileged from arrest on mesne pro- 
 cess in civil actions during their actual attendance upon 
 the sittings of the court. (3 R. S., 480.) And this is so, 
 although he may at the time be attending as an ofBcer, 
 a court of. an inferior jurisdiction, and the court from 
 which the process issues be one of superior or general 
 jurisdiction. {Oihhs agt. Loomis, 10 Johns., 463.) But 
 this privilege remains only whilst in actual attendance 
 or whilst going to and returning from court, and will 
 not avail to shield them from arrest while at home, 
 although such arrest prevent their contemplated atten- 
 dance upon court. (Corey v. Russell, 4 Wend., 204.) 
 And if a constable while in attendance upon the court as 
 an officer be arrested on mesne process, he may apply for 
 his discharge ex parte ; notice need not be given to the 
 party or his attorney on whose behalf the process issued. 
 (Humphrey v. Cumming, gent, one, (tc, 5 Wend., 90., 
 and Secor v. Bell, 18 Johns., 52.) 
 
 The courts-martial in different parts of the State are 
 authorized to issue warrants for the collection of all fines 
 imposed by such courts, directed to any constable of the 
 county, in which the court was held, and in which the 
 delinquent resides, and it shall be the duty of the con- 
 stable to collect such fines in the same manner as he is 
 authorized to collect any debt upon civil process, 
 together with lawful costs, and the amount of the fine 
 to be paid to the county treasurer. (1 R. S., 156.) The 
 constable is also authorized to serve subpoenas, and exe- 
 cute warrants of attachment to compel the attendance 
 
THE constable's GUIDE. 27 
 
 of witnesses beforo courts-martial, and may collect the 
 costs- and feqs for such, services on executions issued by 
 such courts. And by warrants under the hand and seal 
 of the president of such court, may commit to the jail 
 of the county, to the custody of the sheriff, any person 
 or persons who shall be guilty of disorderly, contemp- 
 tuous or insolent behavior in, or use any insulting or con- 
 temptuous or indecorous language or expression to or 
 before such courts or court of inquiry, or any member 
 of either of such courts in open court : such person so 
 committed, to remain without bail or mainprize in close 
 confinement, for a time to be limited, not exceeding 
 three days, and until the officers' fees for committing, and 
 the jailor's fees be paid. (1 K. S., VSY, 758 [311.]) 
 
CHAPTER III. 
 
 OF THE POWER AND DUTIES OF CONSTABLES AS AN OFFI- 
 CER IN justices' COURTS. 
 
 As an officer of the Justices' Court it is the duty of 
 the constable to serve summons, warrants and attach- 
 ment, and to make return to the same and to enforce 
 executions issued by the several justices in the different 
 cities and towns. In many special proceedings they 
 have concurrent jurisdiction with the sheriff, yet they 
 are the only officers who can execute process from the 
 justices' court in civil cases, except in the cases where a 
 justice deputes another person to perform such service. 
 Although, by the statute, they are required to reside 
 in the same town in which they are elected, yet they 
 may serve process in any part of the county ; and they 
 may pass through other counties in conveying one 
 arrested on civil or criminal process, from the place of 
 his arrest to the place where he is to be brought. (3 R. 
 S., 428 ; Mills agt. Kennedy, 1 Johns., 502.) The con- 
 duct of constables, upon process from justices' courts, 
 must be governed by the same law as that of sheriffs 
 upon process of the higher courts, when there is no sta- 
 tute regulation, {Pixleij v. Butts, 2 Cow., 421,) and 
 they have the same power as sheriffs to call out the 
 power of the county to aid in the execution of the pro- 
 
THE constable's GUIDE. 29 
 
 cess : tlie statute expressly providing that, whenever a 
 sheriflf or other public officer, authorized to execute 
 any process delivered to him, shall find or have reason 
 to apprehend that resistance will be made to the execu- 
 tion of such process, he shall be authorized to command 
 every male inhabitant of his county, or so many as he 
 shall think proper, and with such. arms as he shall direct, 
 and any military company or companies in said county, 
 armed and equipped, to assist him in overcoming such, 
 resistance, and, if necessary, in seizing, arresting and con- 
 fining the resisters, their aiders and abettors, to be dealt 
 with according to law. (3 K. S., T40 [441.]) 
 
 And independent of any statutory provision to that 
 effect, it is said that the constable may (and ought, if 
 need be,) take the power of the county, viz. : What 
 number of persons he shall think good, to aid him to 
 execute in every behalf, the people's process, be it what- 
 ever kind ; it being the people's commandment ; and 
 such as shall not assist him herein, being required, shall 
 pay a fine to the people ; and, in such case, the consta- 
 ble may command, and ought to have, the aid and atten- 
 dance of all gentlemen, yeomen, husbandmen, laborers, 
 tradesmen, servants and apprentices, and of all other such 
 persons, being above the age of 15 years, and that are 
 able to travel. And, in such case, they are not appointed 
 any number, but it is referred to the discretion of the 
 constable, what number he will have to attend upon 
 him, and in what manner they shall be armed, wea- 
 poned, or otherwise furnished. ( 1 Cow. Tr., 514, 2d ed.) 
 
 Whenever a constable meets with resistance he is to 
 certify to the court from which such process issued, the 
 names of the resisters, their aiders and abettors, to the 
 3* 
 
30 THE constable's guide. 
 
 end that they may be proceeded against for their con- 
 tempt of such com't ; and every person commanded by 
 such constable to assist him in the execution of process, 
 and who shall refuse, or without lawful cause neglect to 
 obey such command, shall be deemed guilty of a mis- 
 demeanor, and subject to fine and imprisonment. (3 E. 
 S., Y40; Elder v. Morrison, 10 Wend., 137.) 
 
 If a constable willfally, negligently, or erroneously 
 fail to perform their whole duty in the execution of 
 civil process they are liable to the party for. whom they 
 are acting to the extent of the damages such party has 
 sustained thereby ; while if they shall in any respect 
 exceed the powers conferred upon them by their office 
 or the process under which they act, they become liable 
 to the party injured or aggrieved, whether he be the 
 defendant <in the process or a stranger, and in either 
 case they are liable to punishment by indictment. They 
 must perform their whole duty promptly and faithfully, 
 not exceeding their authority, nor committing any error 
 in the discharge of their duties. 
 
 Every constable should be well acquainted with the 
 forms and requisites of every paper or process that is 
 placed in his hands to serve or enforce. If the process 
 be one which does not require the arrest of the party 
 against whom it is issued, or the seizure of his property, 
 it will be immaterial to the officer whether such process 
 is regular or irregular, and, in ordinary cases, he should 
 serve or execute the same according to its command 
 and tenure, and maie a proper return thereto, if a 
 return is necessary. But where the process which re- 
 quires or authorizes the arrest of any party or the 
 seizure of his goods is directed or delivered to any con- 
 
THE CONSTABLES GUIDE. 31 
 
 stable for execution, he should, before proceeding to 
 execute the same, examine and see if such process is 
 regular on its face, and in due and proper form ; for 
 if such process is void upon its face, that is, if it appeal's 
 from the face of it that there was a defect of jurisdiction 
 in the court, or officer issuing such process, or of the 
 subject matter, or of the person or the party to be 
 affected, the constable should not execute it, for if he 
 does, or attempt to do so, he will be trespasser. 
 
 A ministerial officer is protected in the executiou of 
 process, whether the same issue from a court of limited 
 or general jurisdiction, although such court "have not 
 in fact, jurisdiction in the case ; provided that on the 
 face of the process it appears that the court has juris- 
 diction of the subject matter, and nothing appears in the 
 same to apprise the officer, but, that the court has also 
 jurisdiction of the person of the party to be affected by 
 the Tp^oc&ss,. [SavacooLv, Bouffkton, 5 Wend., 110.) 
 As a warrant in due form, issued to a constable, by the 
 receiver of taxes of the city of New York, directing 
 the collection of a tax, protects the officer executing it, 
 whether the tax was lawfully assessed or not. [Gheffaiy 
 V. Jenkins, 1 Sel., 376.) And even if the constable 
 should learn that the officers issuing the process did not 
 have jurisdiction, he would be protected. [The People 
 V. Warren, 5 Hill, 440.) Where an execution is directed 
 and delivered to him for execution he is not bound to in- 
 quire whether there is a judgment to support it, or whe- 
 therthe execution corresponds exactly with the judgment. 
 (See Bacon v. Cropsey, 3 Sel., 199, and cases there cited.) 
 
 A constable may stop in the execution of a process, 
 regular on its face, whenever he becomes satisfied that 
 
32 THE constable's guide. 
 
 ttere is a want of jurisdiction in the court or officer exe- 
 cuting the same : and, if sued for neglect of duty, may 
 show in his defence such want of jurisdiction. ( Uarl v. 
 Camp d Stone, 16 Wend., 562.) And yet, if the irre- 
 gularity be such a one that the party against whom 
 the process has been issued, has waived such irregular- 
 ity, the constable must execute the process. The rule 
 that a constable is justified by his process, not void upon 
 its face, is one of protection only : and if it is in fact 
 void, he cannot build up a title under it, which will ena- 
 ble him to maintain an action against third persons. As 
 where a constable had attached certain property and 
 while in his possession it was taken away in an action 
 brought by the constable for such taking, he must show, 
 not only that the attachments are regular on their face, 
 but that the officer who issued them had jurisdiction. 
 [Horion v. Hendershot, 1 Hill, 118, and Dunlap y 
 Hunting, 2 Denio, 643.) 
 
 Actions in justices' court are commenced by the service 
 of a summons, a warrant, or an order for the recovery of 
 personal property. The more usual mode is by the ser- 
 vice of a summons. Of these there are two kinds, a 
 long summons and a short summons. 
 
 The long summons shall be directed to any con- 
 stable of the county where the justice resides, command- 
 ing him to summons the defendant to appear before the 
 justice who issued the same, at a time and place to be 
 named in such summons, not less than six nor more than 
 twelve days from the date of the same, to answer the 
 plaintiff in the plea in the summons to be mentioned. 
 
 A long summons shall in all cases be served at 
 least six daj-s before the time of appearance mentioned 
 
THE constable's guide. 33 
 
 therein : if tlie defendant sliall be found, it shall be 
 served by reading the same to the defendant, and, if 
 required by him, delivering a copy thereof. If the de- 
 fendant shall not be found, it shall be served by leav- 
 ing a copy thereof at the defendant's last place of abode, 
 in the presence of soipe one of the family, of suitable 
 age and discretion, who shall be informed of its contents. 
 (3 R. S., 428 [228.]) 
 
 The short summons is in all respects like the long sum- 
 mons, except that it is made returnable not less than two 
 nor more than four days from the date thereof, and shall 
 bo served at least two days before the time of appear- 
 ance mentioned therein. (3 K. S., 462.) A summons 
 made returnable at any other times than those specified ; 
 as in five or thirteen days from its date is a nullity. 
 ( Sherwood v. The S. <& W. R. R. Co., 15 Barb., 650.) 
 
 In^ computing the time, the day of service is to be 
 excluded, and the day of appearance included ; and frac- 
 tions of a day will not be regarded, as service of a long 
 summons returnable on the forenoon of the eighth day 
 of a month is well served in the afternoon of the second 
 day of the same month ( Columbia Turnpike Road 
 v. Haywood, 10 Wend., 422): and if made return- 
 able on Friday it should be dated and served as 
 early as Saturday before ; and if dated on the first of 
 September, it cannot be made returnable after the 
 thirteenth. And if the thirteenth should fall on Sun- 
 day, it cannot be made returnable later than the twelfth. 
 [Ex parte Bodge, 1 Oow., 147 ; 1 Cow. Tr., 458, 2d ed.) 
 
 The constable is to find the defendant if he can ; but 
 he is not bound to look for him at any other than 
 his usual place of residence, or last place of abode. 
 
31: THE constable's GUIDE. 
 
 And it is at such place, the copy is to be left, when 
 the constable cannot find the defendant, and not where 
 he may have been on business, visiting, or may have 
 stopped on his travels, or the like. (Dudley v. Staples, 
 15 Johns., 196.) 
 
 When the defendant is a foreign corporation, the ser- 
 vice must he made by delivering a copy thereof to the 
 president or other head of the corporation, secretary, 
 cashier, treasurer, a director or managing agent thereof; 
 biit such service can be made in respect to a foreign 
 corporation onh', when it has property within this state, 
 or the cause of action arose therein ; or where such ser- 
 vice shall be made within this state personally upon the 
 president, treasurer or secretary thereof. (Code, §§ 64 
 and 134.) 
 
 Where service is made upon the managing agent, the 
 managing agent must be one whose agency extends to 
 all the transactions of the corporation — one who has, 
 or is engaged in, the management of the corporation in 
 distinction from the management of a particular branch 
 or department of its business. [Brewster agt. The Michi- 
 gan C. R. R. Co., 5 How., 183.) A baggage master is 
 not such a managing agent as the statute contemplates, 
 and service on him will not be good service on the cor- 
 poration. {Flynn agt. The Hudson R. R. R. Co., 6 How., 
 308.) But service upon the superintendent and general 
 managing agent of a foreign railroad corporation, in the 
 possession of, and using a railroad in this state, is a good 
 service. [Bank of Commerce agt. The Rutland and W. 
 R.R. Co., 10 How., 1.) So, too, service upon an agent 
 of an insurance company, properly apoointed and quali- 
 
THE constable's guide. 35 
 
 fied to procure and effect insurance for the company 
 residing at a different place from where the principal 
 office of the company is located, would be good service. 
 {Bain V. The Globe Ins. Co., 9 How., 448.) 
 
 If the outer door of the defendant's dwelling house be 
 shut, the officer will be a trespasser, if he enter, without 
 license, to make service of the summons (Grab. Prac, 
 142, 143 ; 2d ed.); but he should, where admission is 
 refused, make service, if possible, by reading the process 
 aloud at the door, if he ascertain that the defendant be 
 within ; or by leaving a copy there with a suitable 
 explanation, if the defendant be absent, and any proper 
 member of the family be within hearing. And if the 
 defendant himself refuse him admission, besides reading 
 the summons aloud at the door, it would be advisable, 
 in order to render the service more effectual, to leave a 
 copy there, though not requested, proclaiming aloud 
 that he does so. (I Cowen's Tr., 505, 2d ed.) 
 
 If the defendant require he must leave with him a 
 copy of the summons. The constable serving a summons 
 shall return thereupon, in writing, the time and manner 
 in which ho executed the same, and sign his name 
 thereto. (3 E. S., 428 [228.]) 
 
 As this service is, in the one case, to enable the jus- 
 tice to proceed and give judgment, ex parte ; or in the 
 other, may form the foundation of a warrant or a second 
 summons, the constable should be particular in the ser- 
 vice and return he makes. In case of personal service, 
 the summons should be actually read to the defendant 
 and in his hearing, unless he expressly waives that for- 
 mality, or evades the hearing it, by leaving the consta- 
 ble or otherwise ; in which cases, information of its con- 
 
36 THE constable's guide. 
 
 tents, or an unsuccessful attempt to read it in the defend- 
 ant's hearing, would, without doubt, be considered equi- 
 valent to a literal compliance with the statute. 
 
 The return should state the day of service {Stewart v. 
 Smith, 11 Wend., 517), as weil as the manner of ser- 
 vice, but if the former be omitted, though the error 
 will be fatal on certiorari or appeal, it cannot be taken 
 advantage of collaterally. (Bromly et al. v. Smith, 2 
 Hill, 517.) As to the manner of the service, a return 
 that the service was personal, is a sufficient specification 
 {Legg v. Stillman, 2 Cow., 418), and when served by 
 copy, if upon an individual, the return served by copy 
 is sufficient without stating how the copy was delivered 
 {Hughes v. Mulvey, 1 Sand., 92), though where the 
 defendant is a corporation the return should show how it 
 was served, to enable the justice to determine whether 
 it was served on the proper officer. {Sherwood v. Sara- 
 toga arid W. JR. JR., 15 Barb., 652.) Where the con- 
 stable returned the summons, " personally served and 
 by copy on E.- L. Wents, a managing agent of the 
 defendant," held, that it gave the justice jurisdiction. (iV^. 
 F. c& K R. R. v. Purdy, 18 Barb., 574.) 
 
 The general railroad law provides (Laws of 1854, 
 chap. 282, § 14,) that every railroad corporation in this 
 state shall designate some one in each of the counties 
 through which their road passes, on whom process to be 
 issued by a justice peace, is to be served, and such desig- 
 nation is to be filed in the office of the clerk of the county, 
 but if no such designation is filed, then service may be 
 made on any local superintendent of repairs, freight 
 agent, agent to sell tickets, or station keeper of such 
 corporation, residing in such county, unless there is an 
 
THE constable's GUIDE. 37 
 
 officer of such corporation residing in the county. But 
 if there is a director residing in the' county, the service 
 must be made on such director. ( Wheeler v. N. Y. and 
 H. R. R., 24 Barb., 414.) 
 
 In an action of tort against several defendants, the 
 summons was served personally on only one, and upon 
 the others by copy held erroneous. {Farrell v. Calkins^ 
 aO Barb., 348.) 
 
 When the constable merely held up the' summons and 
 said to the defendant, " Here ii a paper for you in the 
 Marine Court," held, a defective service. [Carrol v. Gos- 
 lin, 2 E. D. Smith, 3l6.) 
 
 Where a constable, to whom a summons had been 
 delivered, by a justice of the peace, for service, brought 
 it to the justice, and stated to him that he had person- 
 ally served it on the defendant, and requested the justice 
 to write his return thereon : and the justice thereupon 
 took the summons and wrote this return upon it in the 
 presence of the constable : " Returned personally served, 
 November 14, 1855, by B. W., const., fees Y5 cts," held, 
 return was, not sufficient. [Reno y. Finder, 24 Barb., 
 423.) 
 
 A summons may be amended both in its date and 
 return, after it has been served. Arnold v. Maliby, 4 
 Denio, 498.) And a constable will be allowed to amend 
 his return where he has made an error or mistake. 
 [Perry agt. Tynen, 22 Barb., 137.) 
 
 A constable may not serve a summons on Sunday (2 
 E. S., 935), nor can he serve it in any city or town in 
 this state, on an elector entitled to vote therein, on either 
 of the days of a general or special election. (1 R. S., 
 418 ; Laws of 1842, ch. 130.) 
 4 
 
38 THE constable's guide. 
 
 The constable should make a prompt and accurate 
 return of the service, because the justice cannot proceed 
 until the return (unless there is an appearance), for it 
 is on that his authority to try the cause depends, if the 
 service be personal ; and he must look to .the same 
 source for authority, to issue a warrant, if the service be 
 by copy. 
 
 A civil warrant is a process issued by a justice directed 
 to any constable of the county where the justice issuing 
 the same resides, and commanding the constable to take 
 the defendant, and bring him forthwith before such jus- 
 tice, to answer the plaintiff in the same warrant to be 
 mentioned ; and further requiring the constable, after 
 he shall have arrested the defendant, to notify the 
 plaintiff of such arrest. (3 R. S., 429 [229.]) 
 
 The warrant is to be served by arresting the defend- 
 ant, and taking him forthwith before the justice issuing 
 the same. If such justice be, on the return thereof, 
 absent, or unable to hear or try the cause, or it shall be 
 made to appear to such justice, by the aflBdavit of such 
 defendant, that such justice is a material witness in the 
 cause, the constable shall take the defendant before the 
 next j ustice of the city or town, who shall take cognizance 
 of the cause and proceed thereon as if the warrant had 
 been issued by him. (3 R. S., 429 [229.]) 
 
 The constable must actually, that is personally arrest 
 the defendant. No manual touching of the body is 
 necessary to an arrest ; it is sufficient if the party be 
 within the power of the officer, and submit to the arrest. 
 {Gold v. Bissell, 1 Wend., 210.) 
 
 The constable, unless he is specially appointed for 
 that particular arrest, is not bound to show his warrant 
 
THE constable's GUIDE. 39 
 
 within his proper district, though demanded. He should 
 however, either before or at the moment of the arrest, 
 make known in some form that he comes in his official 
 character, and not in that of a wrong doer ; as other- 
 wise he may be lawfully resisted. After the party has 
 submitted to the arrest, the constable, if required, is 
 bound to inform him of the substance of the warrant or 
 process. {^Bellows v. Shannon, 2 Hill, 86.) 
 
 On making the arrest, the constable cannot take secu- 
 rity from the defendant for his appearance, but he must 
 bring him personally before the justice, if he do not, 
 though the return be regular on its face, that the defend- 
 ant is in custody, and it is made with the defendant's con 
 sent, a judgment rendered thereon will be void. The 
 constable may allow the prisoner to go at large if he 
 have him before the justice at the appointed time. And 
 if he suffer him to go at large, or he escape, he may 
 retake him within the time appointed. But should the 
 constable suffer him to go at large, and some other offi- 
 cer arrest him, so that he could not have the defendant 
 before the justice, the constable will be liable. ( Olm ■ 
 stead V. Raymond, 6 Johns., 62.) 
 
 After the constable has arrested the defendant, if 
 necessary, he may confine him in his house or other 
 place of security, or, with the leave of the sheriff, place 
 him in the jail for safe keeping, while he looks for as- 
 sistance, or during the night, if the arrest is made in 
 the evening ; but, generally he is to take the prisoner 
 forthwith on the most direct route before the justice 
 who issued the warrant, and detain him there till the 
 justice direct his release. If such justice, on the 
 return of the warrant, be absent or unable to hear or, 
 
40 THE constable's GUIDE. 
 
 try the cause, or if it shall be made to appear to such 
 justice by the affidavit of such defendant, that such 
 justice is a material witness in the case, the constable 
 shall take the defendant before the next justice of the 
 city or town, who shall take cognizance of the cause, 
 and proceed thereon as if the warrant had been issued 
 by him. But in no case shall the defendant be detained 
 longer than twelve hours from the time he shall be 
 brought before the justice, unless within that time the 
 trial of the cause shall be commenced, or unless it shall 
 be delayed at the instance of the defendant. (3 R. S., 
 430' [229.]) 
 
 If the justice who issued the warrant is unable to try 
 the cause, and direct the constable to take him before 
 another justice, and the second justice is unable to try 
 the cause, the warrant is not then spent, nor is the 
 defendant entitled to his discharge, but the constable 
 must make a bona fide effort to find a magistrate to 
 hear the cause. {Arnold v. Steeves, 10 Wend., 514.) 
 
 Although the period of twelve hours is fixed as the 
 utmost extent of time within which a defendant may 
 be detained after he is brought before the justice, the 
 constable may, notwithstanding this pi'0\'ision of the 
 statute, detain the defendant a reasonable time, for the 
 purpose of taking him to the justice's office, and while 
 making a bona fide effort to find the justice, and the time 
 thus employed, is not to be counted as part of the 
 twelve hours. If, however, he should be detained an 
 unreasonable time before being carried before the 
 justice, or while the constable is endeavoring to find 
 the justice, or if he should be kept in custody longer 
 than twelve hours after being brought before the jus- 
 
THE constable's guide. 41 
 
 tice, in either case, the constable and all others engaged 
 in the illegal detention, would be liable to an action for 
 false imprisonment. (1 Cow. Tr., 507, 2d ed.) 
 
 The constable may arrest the defendant wherever he 
 can find him, unless the defendant is privileged from 
 arrest. This privilege may be local, temporary, or 
 personal. 
 
 A local privilege is where the defendant is in his 
 own dwelling house, provided the outer door be shut. 
 The defendant, iu order to avoid an arrest, may shut the 
 outer door of his own dwelling, and set the officer at 
 defiance, and the officer has no right to open it without 
 license, even though it be not fastened. This principle 
 was carried so far, in one case, that where a deputy- 
 sheriff knocked at the door of one Parke's, whose wife 
 came and opened the door to see who was there, and 
 the deputy and those with him pressed in with violence 
 and arrested a man who lodged in the house, it was 
 held that the first entry was unlawful, the opening of 
 the door being occasioned by craft. (1 Cow. Tr., 512, 
 2d ed.) But if the constable find the outer door open, 
 or otherwise enter peaceably, he may, especially after 
 being refused admittance on demand, break open inner 
 doors, in order tj make the arrest ; and even a steady 
 boarder or lodger, who has a room by himself, is not 
 protected from having the door of his room broken, on 
 a warrant to arrest him, where the entry of the outer 
 door is legal, for this is not his dwelling house within 
 the meaning of the law. {Lee v. Gansel, Cowp., 1.) 
 And where an officer having gained admittance through 
 an outer door, -found the chamber door of the defend- 
 ant (n.ot the owner of the house) secured, it was held 
 4* 
 
42 THE CONSTABLES GXTIDE. 
 
 that he was justified in knocking in a window to arrive at 
 the defendant, after having first informed him that he 
 had process to serve. In this case the oflBcer after 
 having obtained an entrance to the house through the 
 outer door went out of the house and entered at a 
 window for the purpose of the arrest. {Lloyd v. Sandi- 
 lands, 8 Taunt., 250.) If a man let out his house and 
 reserve an inner room to himself which he occupied, 
 the outer door of the house being open, the constable 
 entered and broke open the inner door, and arrested 
 him, held, that the arrest was justifiable, although he 
 did not even demand an entrance at the inner door, or 
 give notice that he had a warrant. ( Williams v. Spencer, 
 5 Johns., 352.) And for this purpose the constable may 
 enter any outer door which is open, a back door as well 
 as a front door. (Huhhard v. Mace, 17 Johns., 127.) If 
 the constable find the outer door of the house open he 
 may enter peaceably on suspicion that the defendant is 
 there, though it turn out to be a mistake. (Hutchinson 
 V. Biroli, 4 Taunt., 626 ; Coolce v. Birt, 5 Id., 765.) 
 
 A man's house is only a protection for himself, his 
 family, permanent boarders and lodgers, and not for any 
 one who may fly to it; and if a stranger fly there, the 
 officer, after a denial, on request made, may break the 
 outer door and arrest the fugitive. But if he break 
 the door on mere suspicion to search for a stranger and 
 do not find him, he will be a trespasser. (13 Mass. R., 
 520.) 
 
 Should the defendant after he had been arrested 
 break away from the officer, and shut himself up in his 
 own house, the officer is justifiable in liis attempt to 
 ref.ike him, to break open the outer door of the house 
 
THE constable's GUIDE. 43 
 
 of such party, without making known his business, 
 demanding admission, and receiving a refusal, where the 
 pursuit is fresh, and the party, consequently, aware of the 
 object of the officer. {Allen v. Martin, 10 Wend., 300.) 
 
 The privilege which the law allows to a man's habita- 
 tion, and which precludes the officer from entering, 
 unless the outer door be open, does not extend to a store 
 or barn disconnected from the dwelling and forming no 
 partof the curtilage. (Haggerty-^. Wilber, 16 Johns., SS'Z.) 
 
 Some of the temporary privileges are, that no person 
 can be arrested upon process by civil warrant on Sunday, 
 such arrest is absolutely void, and all concerned in it 
 are liable for false imprisonment. (2 R. S., 935 ; Strong 
 V. Elliot, 8 Cow., 28.) And Sunday consists of twenty- 
 four hours, commencing and ending at midnight. 
 {Pulling V. The People, 8 Barb., 384.) 
 
 If a person be detained on Sunday against his will, to 
 be arrested with process on Monday, the service will be 
 void. (Wells v. Gurney, 8 Barn, and Cres., '769.) So, 
 too, if a person be brought into the state on criminal 
 process as a mere pretext and then arrested, he will be 
 discharged. (]Fi7^ioms v. jBacora, 10 Wend., 636.) But 
 if the defendant escape from the officer he may be re- 
 taken on Monday. (Nicolls v. Ingersoll, 7 Johns., 155.) 
 And he may be retaken on the same process. [Arnold 
 V. Sleeves, 10 Wend., 515.) 
 
 The militia are exempt from arrest from sunrise to 
 sunset on the days of parade. (1 R. S., "742 [303.]) 
 
 So, too, electors are exempt from arrest on the day of 
 any general or special election. (1 R. S., 418 ; Laws 
 of 1842, ch. 130, § 4.) 
 
 Every person duly and in good faith subpenaed as a 
 
44 THE constable's guide. 
 
 witness to attend any court, oflacer, commissioner or 
 referee, or summoned to attend any judge, officer or 
 commissioner, in any case where the attendance of such 
 witness, may by law be enforced by attachment, or by 
 commitment, shall be exonerated from arrest in any 
 civil suit, while going to the place where he shall be 
 required by such subpoena to attend, while remaining at 
 such place and while returning therefrom (3 R. S., 
 685 ; m., 402): and a constable arresting a person sum- 
 moned as a witness as above specified, would be deemed 
 guilty of a contempt of court. (Id.) 
 
 Parties to a suit, during their attendance at court, and 
 while going and returning, or before arbitrators or refe- 
 rees, or upon other judicial proceedings, are privileged 
 from arrest. Nor is the party bound to go the nearest 
 way home, if he do not abuse the privilege, for the pur- 
 pose of going about other business of his own. (Grab. 
 Pr., 129, 130, 2d ed.) 
 
 Attorneys, solicitors and counsellors, as well as all offi- 
 cers of courts of record, during their actual and neces- 
 sary attendance on their respective courts, or on a 
 reference, are also exempt from arrest {Secor agt. Bell, 
 18 Johns., 52), but this exemption does not extend 
 beyond their necessary attendance on those courts. 
 {Oihhs agt. Loomis, 10 Johns., 468.) 
 
 The officers of both houses of the Legislature are pri- 
 vileged from arrest while in actual attendance upon the 
 house. ( 1 R. S., 455.) 
 
 The members of the legislature are privileged from 
 arrest during their attendance upon, and for fonrteeu 
 days before, and fourteen days after each meeting of the 
 
THE constable's GUIDE. 45 
 
 same. (Id.) But tliis privilege will not avail after he 
 Las actually reached home. (Corey y.Hussell, 4 Wend., 
 204.) 
 
 Senators and members of congress are privileged from 
 arrest during their attendance at the session of their 
 respective houses, and in going to and returning from 
 the same. (Const U. S., Art. 1, § 6.) 
 
 Persons who are permanently privileged from arrest 
 are ambassadors, public ministers "(except consuls) and 
 their domestic servants (act of Congress, April 30th, 
 1790, §§ 25, 26), but this does not extend to ambas- 
 sadors of a foreign country accredited to another for- 
 eign country, while passing through this state. [Hol- 
 Irook V. Henderson, 4: Saudf., 619.) This privilege is 
 accorded to the oflSce, and not to the individual, and is 
 founded upon the law of nations. (Valarino v. Thomp- 
 son, 3 Sel., 5Y6.) A consul of a foreign government 
 may be arrested, and if he pleads his privilege ho will 
 be discharged, but he may waive it in a state court 
 {Flynn v. Stoughton, 5 Barb., 115) ; the federal court 
 alone having jurisdiction over consuls. {Davis v. Pack- 
 ard et al., 1 Pet., 276.) 
 
 By federal statute, approved July 11, 1798, the non- 
 commissioned officers, musicians, seamen and marines, 
 who are or shall be enlisted into the service of the 
 United States ; and the non-commissioned officers and 
 musicians who are or shall be enlisted into the army 
 of the United States are exempted, during their term of 
 service, from all personal arrests for any debt or con- 
 tract : this was modified by a statute, approved March 
 16, 1802, § 23, that non-commissioned officers, musicians 
 or privates are not subject to arrest for any debt under 
 
4G THE constablk's guide. 
 
 the sum of twenty dollars, contracted before enlistment, 
 nor for any debt contracted after enlistment. 
 
 An escape is either voluntary or negligent : voluntary 
 when the ofiBcer permits the defendant to go at large, 
 and negligent when the defendant escapes through the 
 carelessness or inattention of the officer. {Littlefield 
 ads. Brown, 1 Wend,, 398.) 
 
 For an escape, either voluntary or negligent, an offi- 
 cer is liable. After a negligent escape, the officer may 
 in all cases retake the defendant, before the return of the 
 writ {Atkinson v. Matteson, 1 T. R., 1'72), even on Sun- 
 day (6 Mod., 231), and after voluntary escape on mesne 
 process he may retake the defendant. {Arnold v. Sleeves, 
 10 Wend., 514.) And the officer will not be liable to an 
 action until it is time for the return of the writ. So that 
 if the constable retake the defendant, or the defendant 
 voluntarily return before the return day of the writ, the 
 officer will be relieved from his liability. {Middle Dist. 
 Banh V. Deyo, 6 Cow., 732.) But a consent to the 
 escape by the plaintiff, after it has happened, and with- 
 out consideration, -will not relieve the officer. {Powers 
 V. Wilson, 1 Cow., 274.) 
 
 If a constable who has a prisoner in his custody dis- 
 charge him by order of a justice who has no authority, 
 from the plaintiff or otherwise, he is liable to an action 
 for an escape. {Van Sli/ck v. Taylor, 9 Johns., 146.) 
 And where a constable having arrested a defendant, left 
 him on his promising to follow him, and afterwards the 
 defendant was arrested by a deputy sheriff and confined 
 in jail, so that the constable could not retake him, held, 
 a voluntary escape. {Olmstead v. Raymond, 6 Johns., 
 62.) 
 
THE constable's guide. 47 
 
 If any person obstruct or prevent an officer from retak- 
 ing the defendant after his escape, the court, upon appli- 
 cation on affidavit of the fact, will grant an attachment 
 against them, the same as in all other cases of obstruct- 
 ing the execution of the process of the court. (Grab. 
 Prac, 149, 2d cd.) 
 
 The constable who shall have arrested any person, 
 while such person is in his custody, may not demand or 
 receive any gratuity or reward, upon any pretence what- 
 ever, for keeping such prisoner out of jail, or for wait- 
 ing for any other purpose ; nor shall he charge such 
 person any thing for any drink, victuals or other thing 
 whatsoever, furnished or provided for such officer, or for 
 such prisoner, at any tavern, ale-house, or public vic- 
 tualing or drinking-house (.3 E. S., 124 [ 427 ] ) ; if so 
 he shall be deemed guilty of a misdemeanor and forfeit 
 his offiee. (3 E. S., 725 [428.]) 
 
 A constable who shall have arrested any prisoner iu 
 any county, may pass over, across and through such 
 part of any other county or counties, as shall be in the 
 ordinary route of travel from the place where such pri- 
 soner shall have been arrested, to the place where he is 
 to be conveyed and delivared, according to the command 
 of the process by which such arrest shall have been 
 made. .Such conveyance shall not in any case be deemed 
 an escape ; nor shall the prisoner so conveyed, or the 
 officers having him in custody, be liable to arrest' on 
 any civil process while passing through such other 
 county or counties. (Id., and see Love v. Humphrey, 9 
 Wend., 204.) 
 
 Every constable serving a warrant shall return there- 
 upon, in writing, the manner in which he executed the 
 
48 THE constable's guide. 
 
 same, and the fact whether he has or has not notified 
 the plaintiff. (3 R. S., 430 [229.]) 
 
 The notice to the plaintiff should if convenient, be 
 personal, it may be written or by parol, by a messenger 
 or otherwise. 
 
 The return is to be indorsed on the process as in other 
 cases ; and if there be several defendants some of whom 
 are not found, the return should so specify the same. 
 
 Should there be a mistake or error in the return, the 
 constable may amend his return. (Perry agt. Tynen, 22 
 Barb., 137.) 
 
 Attachments which are issued by a justice of the 
 peace commands any constable of the county, in which 
 the justice resides, to attach so much of the goods and 
 chattels of the debtors as will be sufficient to satisfy 
 such debt, and safely to keep the same, in order to 
 satisfy such debt, and safely to keep the same in order 
 to satisfy any judgment that may be recovered on such 
 attachment; and to make return of his proceedings 
 thereon to the justice who issued the same, at a time 
 therein to be specified. (3 R. S., 431 [230.]) 
 
 Attachments are of two kinds : a long attachment 
 and a short attachment ; the long attachment is made 
 returnable not less than six, nor more than twelve days 
 from the date thereof (3 R. S., 431 [230]).; the 
 short attachment is made returnable not less than two 
 nor more than four days from the date thereof. (3 R. 
 S., 462 ; Laws of 1831, ch. 300, § 32.) 
 
 The constable receiving the attachment must execute 
 the same, if a long attachment at least six days before 
 the return day thereof, and if a short attachment at 
 least two days before the return thereof' and shall 
 
THE CONSTABL35'S GUIDE. 49 
 
 attach and take into his custody, and safely keep, such 
 part of the goods and chattels of the defendant as shall 
 not be exempt from execution, and as shall be sufficient 
 to satisfy the demand of the plaintiff. He shall imme- 
 diately make an inventory of the property seized, and 
 shall leave a copy of the attachment, and of the inven- 
 tory, certified by him, at the last place of residence of 
 the defendant ; but if the defendant have no place of 
 residence in the county where the goods and chattels 
 are attached, such copy and inventory shall be left with 
 the person in whose possession the said goods and chat- 
 tels shall be found. (3 E. S., 431, 462 [230.]) 
 
 The mode of computing the time of service of attach- 
 ments is the same as in the service of a summons. 
 {Ante, p. 33.) 
 
 The kind of goods which may be taken by the con- 
 stable, the manner in which a levy is made, what 
 amounts to a levy, and the power of the officer in 
 forcibly entering buildings to effect it, are governed in 
 all respects by the rules applicable to enforcing execu- 
 tions against property, and will be treated of at large 
 under that head. 
 
 On taking the goods, the constable is at his peril to 
 see that they are safely kept. He is considered in the 
 light of a bailee, and accountable to either party for 
 ordinary negligence, by which either sustains any injury. 
 This is upon the principle that the bailment is mutually 
 beneficial, both to the bailer and bailee. 
 
 Ordinary negligence may be defined to be the want 
 of ordinary diligence, or the omission of that care which 
 every man of common prudence, and capable of govern- 
 ing a family, takes of his own concerns, called ordinary 
 5 
 
50 THE constable's GUIDE. 
 
 care (Edwards on Bail., 44) so that if the goods be lost, 
 or destroyed without the fault of the officer he is not 
 accountable. (Jenner v. Joliffe, 6 John., 9.) And in 
 Older to protect himself he is to provide such convenient 
 place for their safe keeping, as shall comport with his 
 rights and duties in this respect. 
 
 The constable may, if he chooses, leave the property 
 levied upon by him with the defendant, but it will be at 
 his risk if it is lost or destroyed, unless by the act of 
 God, or of the public enemies. (Browning v. Sanfwd, 
 5 Hill, 593.) Hence the officer, for his own security 
 and protection, should cause the property attached to be 
 removed, or another person than the defendant to be 
 put in possession. If it is left with the defendant, he 
 should obtain the assent of the plaintiff to the same, or 
 take a receipt for the property of some one or more 
 responsible persons, to the effect that he or they have 
 received the property from the constable, who levied 
 upon the same, and that he or they will return the pro- 
 perty and every part thereof to the constable on his 
 demand thereof, or pay the debt ; such a receipt will be 
 a valid agreement, and will not be within the statute 
 against taking bonds under pretence of authority or 
 •corruptly. (See Burrall v. Acker, 23 Wend., 606.) 
 Under such an agreement or receipt, the constable may 
 repossess himself of the property, either for the pur- 
 pose of selling it, or of returning it to the defendant. 
 (Id.) 
 
 If the goods are not forthcoming on demand by the 
 constable, when the receiptor is a third party and not 
 the defendant, he cannot seize other property of the 
 defendant ; he can only look to his receipt or under- 
 
THE constable's GUIDE. 61 
 
 taking : and in such case it will be immaterial whether 
 the property originally taten was sufficient to satisfy the 
 demand or not. (See Hoyt v. Hudson, 12 John., 207.) 
 
 This, however, applies only to a case where the defend- 
 ant has been divested of his property by the attachment, 
 and not to a case where the defendant has repossessed 
 Iiimself of the property again ; or where it was not his 
 property ; or it was taken on some lien secured prior to 
 the attachment. (See PecJc v. Tiffany, 2 Com., 451.) 
 
 No goods attached by a constable shall be removed 
 by him, if a bond be given and delivered to such consta- 
 ble by any person, with sufficient surety, to be approved 
 by the constable in a penalty double the sum stated in 
 the attachment to have been sworn to by the plaintiff, 
 conditioned that such goods and chattels shall be pro- 
 duced, to satisfy any execution that may be issued upon 
 any judgment which shall be obtained by the plaintiff 
 upon such attachment, within six months after the date 
 of such bond. (3 R. S., 431 [231].) This bond is to be 
 given to the constable and is for his security under the 
 attachment. 
 
 Notwithstanding the giving of the bond by the debtor 
 for its production, the constable, by his attachment has 
 a lien upon the goods until the issuing of an execution, 
 and a reasonable time thereafter to make a levy under 
 the execution. If, however, in the meantime the pro- 
 perty be removed by the debtor beyond the jurisdiction 
 of the officer who issued the attachment, and it be there 
 seized under another attachment, the lien is gone, not- 
 withstanding the issuing of an execution under the first 
 attachment. [Sterling v. Welcome, 20 Wend., 238.) 
 -If any person shall claim any goods or chattels 
 
52 THE constable's guide. 
 
 attached by a constable, he may, after such seizure, and 
 at any time before execution shall have been issued upon 
 the judgment obtained on such attachment, execute a 
 bond to the plaintiff, with sureties to be approved by 
 the constable, or by the justice who issued the attach- 
 ment, in a penalty double the value of the property 
 attached, conditioned that in a suit to be brought on 
 such bond, within three months from the date, such 
 claimant will establish that he was the owner of the 
 goods seized, at the time of such seizure ; and in case of 
 his failure to do so, that he will pay the value of the 
 goods so claimed, with interest. (3 R. 8., 431 [231].) 
 This bond must be double the value of the property 
 attached, without reference to the amount claimed by 
 the plaintiff in the action. (Kamena v. Warner, 6 Duer, 
 698 ; S. C, 6 Abb., 193.) 
 
 This bond is to be given not to the constable, but to 
 the plaintiff in the action : and the statute was designed 
 for the benefit of the general owner of the goods 
 attached, and cannot be given by a person who has made 
 a levy on the goods, he having only a special property in 
 them. (Pierce et al. v. KingsmiU et al., 25 Barb., 631. 
 Upon either of the bonds aforesaid being, executed and 
 delivered to the constable, he shall deliver up the pro- 
 perty seized by bim to the obligor in such bond. (3 
 E. 8., 432 [231].) 
 
 The bond to the constable may be given with one 
 surety ; but the bond given by the claimant to the plain- 
 tiff should have at least two sureties. (Smith v. McFall, 
 18 Wend., 521.) The constable has a discretion to 
 exercise as to the sufficiency of the security to be taken; 
 and will undoubtedly be protected, if he exercise it in 
 
THE constable's guide. 53 
 
 good faith. If ttie surety or sureties offered, are stran- 
 gers to the constable, or if he is unacquainted with their 
 circumstances, or doubt their sufficiency, he should, for 
 the purpose of ascertaining the fact, administer an oath 
 to the person or persons so offered. If he do this, and 
 the surety prove his sufficiency, the officer cannot be 
 held liable, for he has done all the law requires of him. 
 (1 Cow. Tr., 51'i'.) If the justice approve the surety the 
 constable of course will not be liable : but whenever the 
 constable approves the bond his safer way will be to 
 have the justification of the surety or sureties indorsed 
 on the bond, and for the purpose of qualification the con- 
 stable may administer an oath to the surety. (3 K. S., 
 866 [552].) The approval by the constable should be 
 indorsed on the bond, though an acceptance of the bond 
 bythe constable without objection tothesufficiencyof the 
 surety, would be deemed an approval. (1 Cow. Tr., 518.) 
 
 There can be no difficulty in ascertaining the amount 
 of penalty to be inserted in the bond given to prevent 
 the removal of goods attached, as it must be double the 
 amount specified in the attachment : but in the bond 
 given by the claimant, the constable must take the 
 responsibility of fixing the value of the property 
 attached, and then double that value, and insert it in 
 the bond by way of penalty. 
 
 "Where it is inconvenient or impossible to give a bond, 
 the constable may take a receipt, as there is nothing in 
 the statute inhibiting the use of a receiptor, and con- 
 venience, and in many instances necessity, require that 
 the practice should be sustained. When a receipt is 
 taken the property is still in his custody by intendment 
 of law, and he is responsible for it in like manner and to 
 5* 
 
54 THE constable's guide. 
 
 the same extent as though he had it in his actual pos- 
 session. {Harvey v. Lane, 12 Wend., 565.) 
 
 The hond given should he sealed. Sealing in the law 
 means an impression upon wax, or wafer, or some other 
 tenacious suhstance, capable of being impressed ; and a 
 scrawl, with a pen, of l. s., or other sign at the end of 
 the name, is not a seal. {Van Santwood v. Sandford, 12 
 Johns., 198.) 
 
 The attachment, issued at the instance of a hona fide 
 creditor, and in a case warranted by law, when executed, 
 creates a lien upon the goods attached, not only against 
 the acts of the debtor himself, but against a subsequent 
 attachment or execution of any other creditor ; but the 
 lien will be lost if the creditor does not prosecute his 
 suit to judgment and execution with all due diligence 
 (Van Loan v. Kline,, 10 Johns., 129) : and this remains 
 so whether the goods are removed by the constable, or 
 left with a receiptor, or with the defendant upon taking 
 a bond as security for its future delivery. (Harvey v. 
 Lane, 12 Wend., 563.) 
 
 Having taken the goods, the constable is required 
 immediately to make an inventory of the property 
 seized : and to complete the service by serving a copy of 
 the attachment and inventory, certified by him on the 
 defendant personally, if he can be found in the county, 
 if not so foxmd, then the copy of the attachment and 
 inventory is to be left at the last place of residence of 
 the defendant ; but if he have no plac'e of residence in 
 the county where the goods and chattels are attached, 
 such copy and inventory are to be left with the person 
 in whose possession the goods and chattels are found. 
 (3R.S., 431 [230].) The last place of residence must be 
 
THE constable's GUIDE. 55 
 
 his usual place of residence, and leaving tlie copy at a 
 store where the defendant had been a short time before 
 is not a compliance with the statute. (Dudley v. Sta- 
 ples, 15 Johns., 196.)_ 
 
 Having served the attachment, the constable is to 
 make a return thereof at a day therein named for that 
 purpose, with all his proceedings thereon in writing, 
 subscribed by him, with a copy of the inventory of the 
 goods attached, certified by him, and with, any bond 
 which may have been executed and delivered to him 
 either by the defendant or a third party. (3 E. S., 432 
 [231].) 
 
 The return should specify the particular manner in 
 which the attachment was executed, the day of attach- 
 ing the goods, and of serving or leaving the copy, ought 
 also to be specified : if the defendant cannot be found 
 that fact should be specifically stated {Rosenfield v. 
 Howard, 15 Barb., 546), and, also, that a copy of the 
 attachment had been left at the dwelling house, or other 
 last place of abode of the defendant ( Willard v. Sperry, 
 16 Johns., 121), or with the person, naming him in whose 
 possession the goods were found ; and it would be well 
 to return that the copy, attachment and inventory served 
 were certified by him ( Van Kirk v. Wilds, 1 1 Barb., 
 520); if there be more than one defendant, and only a 
 part of the defendants are found, the return should 
 specify distinctly which were found, and which not 
 found. (McDoel v. Cook et al., 2 Com., 110.) 
 
 The return of the constable is, undoubtedly, equally 
 conclusive with that upon a summons, it cannot be 
 attacked collaterally [Case v. Redfield, 7 "Wend., 398) ; 
 and cannot be drawn in question except in an action 
 
56 THE constable's guide. 
 
 upon a false return, or upon indictment. { Wheeler v. 
 Lampman, 14 Johns., 482.) 
 
 By the statute of I860, and 1862. the jurisdic- 
 tion of courts of justices of the peace, were enlarged 
 hy giving the right to recover by action in such courts 
 the possession of personal property claimed, the value of 
 which shall not exceed the sum of two hundred dollars. 
 
 The plaintiff in such action, at the time of issuing the 
 summons, but not afterwards, may claim the immediate 
 delivery of such property, as hereinafter provided. 
 
 Before any process shall be issued in an action to reco- 
 ver the possession of personal property, the plaintiflF, his 
 agent or attorney, shall make proof by affidavit showing : 
 
 1. That the plaintiff is the owner, or entitled to imme- 
 diate possession of the property claimed, particularly 
 describing the same. 
 
 2. That such property is wrongfully withheld or de- 
 tained by the defendant. 
 
 3. The cause of such detention or withholding thereof, 
 according to the best knowledge, information and belief 
 of the person making the affidavit. 
 
 4. That said personal property has not been taken for 
 any tax, fine, or assessment, pursuant to statute, or 
 seized by virtue of an execution or attachment against 
 the property of said plaintiff ; or if so seized, that it is 
 exempt from such seizure by statute. 
 
 5. The actual value of said property. 
 
 On receipt of such affidavit, and an undertaking in 
 writing, executed by one or more sufficient sureties, to 
 be approved by the justice of the peace before whom 
 such an action is commenced, to the effect that they 
 are bound in double the value of such property as stated 
 
THE constable's GUIDE. 51 
 
 in said affidavit for the prosecution of said action, and 
 for the return of said property to the defendant, if return 
 thereof be adjudged, and for the payment to him of such 
 sum as may for any cause be recovered against said 
 plaintifif ; the justice shall indorse upon said affidavit a 
 direction to any constable of the county in which said 
 justice shall reside, requiring said constable to take the 
 property described therein from the defendant, and keep 
 the same to be disposed of according to law ; and the 
 said justice shall at the same time issue a summons 
 directed to the defendant, and requiring him to appear 
 before said justice at a time and place to be therein 
 specified, and not more than twelve days from the date 
 thereof, to answer the complaint of said plaintiff; and 
 the said summons shall contain a notice to the defend- 
 ant, that in case he shall fail to appear at the time and 
 place therein mentioned, the plaintiff will have judg- 
 ment for the possession of the property described in 
 said affidavit, with the costs and disbursements of said 
 action. 
 
 The constable, to whom said affidavit, indorsement 
 and summons shall be delivered, shall forthwith take the 
 property described in said affidavit, if he can find the 
 same, and shall keep the same in his custody. He shall 
 thereupon, without delay, serve upon said defendant a 
 copy of such affidavit, notice and summons, by delivering 
 the same to him personally, if he can be found in said 
 county ; if not found, to the agent of the defendant in 
 whose possession said property shall be found ; if neither 
 can be found, by leaving such copies at the usual place 
 of abode of the defendant, with some person of suitable 
 age and discretion ; and shall forthwith make a return 
 
58 THE constable's guide., 
 
 of liis proceedings thereon, and the manner of serving 
 the same to the justice who issued said summons. 
 
 The defendant may at any time after such service, 
 and at least two days before the return day of said 
 summons,* serve upon the plaintiff or cofistable who 
 made such service, a notice in writing that he excepts 
 to the sureties in said bond or undertaking ; and if he 
 fail to do so, all objections thereto shall be waived. If 
 such notice be served the sureties shall justify, or the 
 plaintiff give new sureties on the return day of said 
 summons, who shall then appear and justity, or said jus- 
 tice shall order said property delivered to defendant, 
 and shall also render judgment for defendant's costs and 
 disbursements. 
 
 At any time before the return day of said summons, 
 the said defendant may, if he has not excepted to plain- 
 tiff's sureties, require the return of said property to him, 
 upon giving to the plaintiff, and filing with the same 
 justice, a written undertaking with one or more sureties, 
 who shall justify before said justice on the return day 
 of said summons, to the effect that they are bound in 
 double the value of said property, as stated in plaintiff's 
 affidavit for the delivery thereof to said plaintiff, if such 
 delivery be adjudged, and for the payment to him of such 
 sum as may for any cause be recovered against said 
 defendant, and if such return be not required before the 
 return day of said summons the property shall be 
 delivered to said plaintiff. (Code, § 53.) 
 
 The sureties must each of them be a resident and 
 householder, or freeholder, within this state They must 
 each be worth the amount specified in the affidavit, 
 exclusive of property exempt from execution, but the 
 
THE CONSTABLE S GITIDB. 
 
 59 
 
 justice of the peace on justification, may allow more 
 than two bail to justify severally in amounts less than 
 that expressed in the affidavit, if the whole justification 
 be equivalent to that of two suflScient bail. (Code, § 194.) 
 
 For the purpose of justification, each of the bail shall 
 attend before the justice of the peace, at the time and 
 place mentioned in the notice, and may be examined, on 
 oath, on the part of the plaintiff, touching his sufficiency, 
 in such manner as the justice of the peace, in his discre- 
 tion, may think proper. The examination shall be 
 reduced to writing and subscribed by the bail if required 
 by the plaintiff. (Code, § 195.) 
 
 If the property or any part thereof be concealed in a 
 building or inclosure, the constable shall publicly demand 
 its delivery. If it be not delivered, he shall cause the 
 building or inclosure to be broken open, and take the 
 property into his possession ; and if necessary he may 
 call to his aid the power of his county. (Code, § 214.) 
 
 When the constable shall have taken property, as in 
 the statute provided, he shall keep it in a secure place, 
 and deliver it to the party entitled thereto, upon receiv- 
 ing his lawful fees for taking, and his necessary ex 
 penses for keeping the same. (Code, § 215.) 
 
 If the property taken be claimed by any other person 
 than the defendant, or his agent, and such person shall 
 make affidavit of his title thereto, and right to the pos- 
 session thereof, stating the grounds of such right and 
 title, and serve the same upon the constable, the consta- 
 ble shall not be bound to keep the property, or deliver 
 it to the plaintiff, unless the plaintiff, on demand of him 
 or his agent, shall indemnify the constable against such 
 claim by an undertaking, executed by tvro sufficient 
 
60 THE constable's GUIDE. 
 
 sureties, accompanied by their affidavits, that they are 
 each worth double the value of the property as-specified 
 in the affidavit of the plaintiff, and freeholders and house- 
 holders of the county. And no claim to such property 
 by any other person than the defendant or his agent, 
 shall be valid against the constable unless made as afore- 
 said, and notwithstanding such claim, when so made, he 
 may retain the property a reasonable time to demand 
 such indemnity. (Code, § 216.) 
 
 The return of the constable should show fully and 
 specifically every thing done by him in regard to taking 
 the property : for if the property shall not have been 
 delivered to plaintiff by the consent of the defendant, or 
 the defendant by answer, shall claim a return thereof, 
 the justice or jury shall assess the value thereof, and the 
 injury sustained by the prevailing party by reason of the 
 taking or detention thereof, and the justice shall render 
 judgment accordingly, with costs and disbursements. And 
 if it shall appear by the return of the constable that he 
 had taken the property described in the plaintiff's affida- 
 vit, and that defendant cannot be found, and has no last 
 placg of abode in said county, or that no agent of 
 defendant could be found on whom service could be 
 made, the justice may proceed with the cause in the 
 same manner as though there had been a personal service. 
 
 Notwithstanding the justice passes upon the suffi- 
 ciency of the affidavit, the constable should examine the 
 papers and see that all the requisitions of the statute have 
 been complied with, before he commences to enforce 
 the order of the justice. If there should be a deficiency 
 iu the affidavit, it should be corrected and amended, as 
 such deficiency therein might be of such a nature that 
 
THE CONSTABLES GUIDE. 61 
 
 it would fail to confer jurisdiction on the justice, and the 
 constable in. the enforcing of the order be guilty of 
 trespass. 
 
 In case the constable receives from the defendant a 
 notice that he excepts to the sureties of the bond or 
 undertaking of the plaintiff, he should hand such notice 
 to the plaintiff, or give the plaintiff information of his 
 having received such notice, excepting to the sureties, in 
 order that the plaintiff may have his sureties ready on 
 thereturn day of the summons to justify before the justice. 
 
 Where a third party and not the defendant claims 
 the property, and the plaintiff gives additional security 
 to protect the constable against the claim of such third 
 party, the constable should be careful and sec that the 
 sureties so given are both freeholders and householders 
 of the county. (Code, § 216.) 
 
 A subpoena may be served either by a constable or 
 any other person : and it shall be served by reading the 
 same, or stating the contents, to the witness, and by 
 paying or tendering the fees allowed by law for one day's 
 attendance of sueh witness. (3 E. S., 439.) 
 
 When the justice has issued the subpoena and inserted 
 one name therein, the party or his agent may insert as 
 many others as he chooses. 
 
 Where a constable with a subpoena, in seeking for a 
 witness, finds the witness in his house and the door open 
 he has a license to enter, and, having entered peaceably, 
 he has a right to use all the force that may be necessary 
 to enable him to serve the subpoena. ( Hager v. Dan- 
 forth, 20 Barb., 16.) 
 
 The service must be personal, on the witness, and in 
 reasonable time before the hour of trial, that he may 
 6 
 
62 THE cokstable's guide. 
 
 suflfer the less inconvenience from his attendance on the 
 court, and this must be sufficiently early that the witness 
 may travel according to the usual modes of public con- 
 veyance, without being required to travel on the Sab- 
 bath. [WilMe y. Chadwich, 13 Wend., 49.) And even 
 though the distance to travel be not far, yet the witness 
 should have sufficient notice in order that he may so 
 arrange his business without great inconvenience to him- 
 self — as where at nooii on Saturday, a resident of New 
 Yorlc was subpenaed to testify in the afternoon of that 
 day, he at the time being about to leave the city with 
 his familj', who were already on board the steamboat, 
 declined to attend on that day but oflFered to attend on the 
 following Monday, the court refused to punish him, hold- 
 ing that the'party was in fault for deferring the service of 
 the subpoena. ( Chalmers v. Melville, 1 E. D. Smith, 503.) 
 So that the better way for the constable is to serve the 
 subpoena as soon as he conveniently can after receiving it. 
 If the witness should attempt to evade the hearing of 
 the subpoena by going away or otherwise, still the service 
 would be good if the constable should do all within his 
 power to make the service complete in accordance with 
 the statute. 
 
 In addition to reading the subpoena the constaWe 
 must pay or .tender the witness his fees, because, if 
 the fees are not paid the witness is not bound to 
 attend, unless he has waived the payment of the 
 same. The fees are twenty-five cents per day (Laws 
 1866), when the witness is from the same county, 
 but when from any other place- than the same 
 county twenty-five cents. (3 R. S. 451 [265].) 
 And there must be an ofier of the money,unless it be 
 
THE constable's guide. 63 
 
 dispensed with by the express declaration. or equivalent 
 act of the witness, and then a mere offer to pay is not 
 sufficient; the tender is a production and manual offer 
 of the money, and regularly it should be counted down. 
 (See BaJceman y. Pooler, 15 Wend., 637.) Indeed, it is 
 unsafe to dispense with the actual production of it, 
 unless the constable be told expressly by the witness not 
 to produce it. 
 
 The constable having served the subposna, should 
 indorse his return thereon, and return it to the justice ; 
 and if the witness is privileged from arrest, and that fact 
 should be known to the constable, it would be well for 
 him to report that fact to the justice. 
 
 If the witness fail to appear at the time at which he 
 was summoned, the justice may issue an attachment to 
 compel his attendance, and the constable is the proper 
 person to execute the attachment. 
 
 The attachment is to be executed in the same manner 
 as a warrant ; and the fees of the officers for issuing and 
 serving the same shall be paid by the person against 
 whom the same shall have been issued, unless he shall 
 show reasonable cause, to the satisfaction of the justice, 
 for his omission to attend ; in which case the party re- 
 quiring such attachment, shall pay all costs of such attach- 
 ment and the service of the same. (3 R. S., 439 [241].) 
 
 The justice should determine on the return of the 
 attachment whether the witness, or the party should 
 pay the costs. 
 
 The statute contains no provision directing the man- 
 ner in which the payment of the costs of issuing and serv- 
 ing the attachment shall be enforced ; but on the return 
 of the attachment, the justice should determine whether 
 
64 THE constable's guide. 
 
 the witness, or the party, should pay the costs. In case 
 he determine the witness shall pay them, they may be 
 collected of him by a suit in the name of the party 
 requiring the attachment, and he would be accountable 
 to the justice and constable respectively for their fees, in 
 the same manner as for other services rendered for him ; 
 and the party would be accountable, in like manner, to 
 the justice and constable, if the justice should determine 
 that he should pay the costs. (2 Cow. Tr., 864, 2d ed.) 
 
 The constable is the proper person to execute a venire. 
 
 Upon the demand of a trial by jury, the justice shall 
 issue a venire directed to any constable of the county 
 wherein the cause is to be tried, commanding him to 
 summon twelve good and lawful meh in the town where 
 such justice resides, qualified to serve as jurors, and not 
 exempt from serving on juries in courts of record, who 
 shall be in nowise of Mn to the plaintiff or defendant, 
 nor interested in such suit, to appear before such justice 
 at a time and place to be named therein, to make a 
 • jury for the trial of the action between the parties named 
 in such venire. No constable who shall have been em- 
 ployed to act, or who shall have acted as attorney or agent 
 in respect to any claim or matter in controversy, shall 
 summon any jury, in any justices' court, which shall be 
 summoned to try any question in relation "to any such 
 claim or matter. 
 
 If the action in which such issue shall be joined, 
 shall be between two towns, the venire shall direct the 
 constable to summon twelve good and lawful men of the 
 county, qualified and not exempt, and not interested, as 
 hereinbefore provided, to make a jury for the trial of 
 such action. 
 
THE constable's GUIDE. 65 
 
 The justice issuing the venire is to cause the same to 
 be delivered to some constable of the county, disinte- 
 rested between the parties, and against vfhora no reason- 
 able objection shall have been made by either party. 
 
 The constable to whom any venire shall be delivered, 
 shall execute the same fairly and impartially, and shall 
 not summon any person whom he has reason to believe 
 biased or prejudiced for or against either of the parties. 
 He shall summon the jurors personally, and shall make 
 a list of the persons summoned, which he shall certify 
 and annex to the venire, and return to the justice. 
 
 At the trial of the. cause, the names of the persons 
 returned, and who shall appear, shall be respectively 
 written on several and distinct pieces of paper, as nearly 
 of one size as may be ; and the constable, in the pre- 
 sence of the justice, shall roll up or fold such pieces of 
 paper, as nearly as may be, in the same manner, and 
 put them together in a box, or some convenient thing. 
 The justice shall then draw out six (or such number as 
 the parties may have agreed upon) of such papers, one 
 after another to form the jury. If a sufficient number 
 of competent jurors shall not be drawn, the justice may 
 supply the deficiency by directing the constable to sum- 
 mon any of the bystanders, or others, who may be com- 
 petent, and against whom no cause of challenge shall 
 appear, to act as jurors in the cause. (3 K. S., 441, 442 
 [242, 243].) 
 
 The constable should not attempt to execute a venire 
 in those cases where, if executed by him, there would 
 be a challenge to the array. A challenge to the array 
 is an objection to all the jurors returned by the consta- 
 ble collectively (Co. Litt., 156, 158), not for any defect in 
 
66 THE constable's guide. 
 
 them, but for some partiality or default in the constable 
 who summoned them. (3 Bl. Com., 359.) This is either 
 a principal challenge, or a challenge to the favor. 
 
 At common law, the causes of principal challenge to 
 the array extended to a great variety of cases, implying 
 necessarily, a bias on the part of the constable, or return- 
 ing ofBcer as that the officer, who summoned the jurors, 
 was of kindred or affinity to either party, within the 
 ninth degree (South., 364) ; that one or more of the 
 jury were returned at the nomination of the plaintiff or 
 defendant, that the constable is liable to be distrained 
 upon by the plaintiff or defendant, or is his servant, 
 counseller or attorney, or acts as his advocate (Baylis v. 
 Lucas, Cowp., 112); unless indeed the parties agree that 
 he should summon the jury notwithstanding such objec- 
 tion exists {Watkins v. Weaver, 10 Johns., lOV) ; or if 
 the constable be any way interested in the question to 
 be tried, and this, whether it be in the cause to be tried, 
 or in any other cause or matter depending on the same 
 point of controversy, or was an arbitrator in the same 
 matter, and had treated thereof. (Co. Litt., 156.) 
 
 The causes of challenge to the array for favor, are 
 such as imply at least a probability of bias or partiality 
 in the constable, but do not amount to a principal chal- 
 lenge. Thus that the plaintiff or defendant is tenant to 
 the constable ; or that the son of the constable has 
 married the daughter of the plaintiff or defendant : or 
 the like (Co. Litt., 156) ; or that the constable and party 
 are fellow servants (Dyer, 367, PI. 40) ; or the party 
 servant to the constable (Cro. Eliz., 581); and so of any 
 cause from which the triers may infer that he is nol 
 
THE constable's guide. 67 
 
 entirely indifferent between the parties. (2 Cow. Tr., 
 887, 2d ed.) 
 
 But where the cause is for interest, partiality or affin- 
 ity, the party cannot, of course, object or challenge to 
 the array, or to the polls, unless the bias is against him. 
 It does not lie in his- mouth to challenge, because the 
 interest, ifec, is in his own favor. 
 
 The venire must be served personally, and cannot be 
 served by leaving a copy, and may be served like a sub- 
 poBna, by reading it to the juror, or stating its contents. 
 Jurors, like witnesses, ought to have a reasonable notice, 
 that their attendance on the return of the venire may be 
 as little prejudicial to themselves as possible. 
 
 The constable is to summon only those persons who 
 are qualified to serve as jurors ; described in the statute 
 as follows : 
 
 1. Male inhabitants of the town, not exempt from 
 serving on juries. 
 
 2. Of the age of twenty-one years, or upwards, and 
 under sixty years old. 
 
 3. Who are at the time assessed for personal property, 
 belonging to them in their own right, to the amount of 
 two hundred and fifty dollars, or who shall havea free- 
 hold estate in real property in the county, belonging to 
 them in their own right, or in the right of their wives, 
 to the value of one hundred and fifty dollars. 
 
 4. In the possession of their natural faculties, and not 
 infirm or decrepit. 
 
 5. Free from all legal exceptions, of fair character, of 
 approved integrity, of sound judgment and well informed. 
 
 Every person residing in either of the counties of 
 Niagara, Erie, Chautauqua, Cattaraugus, Allegany, Gen- 
 
68 THE constable's guide. 
 
 . esee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. 
 Lawrence, Steuben and Franklin, who does not possess 
 either of the qualifications specified in the third of the 
 above subdivisions, but is qualified in all other respects, 
 and who shall have been assessed on the last assessment- 
 roll of the town for land in his possession, which he holds 
 under contract for the purchase thereof, upon which 
 improvements shall have been made to the value of one 
 hundred and fifty dollars, and who owns such improve- 
 ments, is qualified to serve as a juror. Every person resid- 
 ing on the New Stockbridge tract, in the towns of Ver- 
 non and Augusta, in the county of Oneida, Lenox and 
 Smithfield, in the county of Madison, who is in posses- 
 sion of lands under contract for purchase, and is worth 
 one hundred and fifty dollars in personal property, or 
 shall have made improvements upon such lands to that 
 amount, is, if otherwise qualified according to law, qual- 
 ified to serve as a juror in any court holden before a 
 justice of the peace within the town. (3 E. S., 695, 696 
 [411, 412.] In the city of New York it shall not be a ne- 
 cessary qualification for a juror, that he shall actually be 
 assessed in said city. (3 K. S., 697 ; Laws ISi'?, chap. 
 495.) 
 
 The constable should be particular and not summon 
 any persons who are exempt from serving on the jury ; 
 or any persons whom the court would excuse for any 
 statutory reason. 
 
 The following persons are exempt : every collector of 
 tolls, the clerks of each collector, not exceeding two, 
 having the colleitor's certificate that they are actually 
 employed by him, and all superintendents of repairs, 
 lock-tenders, inspectors of boats and weighmasters, while 
 
THE CONSTABLE S GUIDE. 69 
 
 actually engaged in their respective employment on the 
 canals, while the same are navigable (1 R.S.,639 [250]) : 
 the superintendent and each of his deputies, and all per- 
 sons employed in attendance upon any works for the man- 
 ufacture of coarse salt (1 R. S., 680 [278] ) : all oflacers, 
 non-commissioned oflBcers, musicians and privates of uni- 
 formed militia, who shall have served for the period of 
 seven years (1 R. S., 112 ; Laws of 1849, ch. 307 ) : the 
 keeper of every poor house, alms house, or other place 
 provided for the reception and support of the poor (2 R. 
 S., 855 [631] ) : every person holding office under and 
 by virtue of the metropolitan police law in the counties 
 of New York, Bangs, "Westchester and Richmond (2 
 R. S., 1011; Laws of 1857, ch. 569): all firemen in the 
 city of New York, who actually perform all the duties of 
 such firemen (3 R. S., 700 ; Laws of 1847, ch. 495) : 
 persons whose religious faith and practice is to keep the 
 seventh day of the week are exempt from serving as ju- 
 rors on Saturday only (Laws of 1847, ch. 349): firemen 
 who are regularly enrolled and recognized by the author- 
 ities of several cities and villages of this state during the 
 time of their service, and forever, after they have served 
 five years (Laws of 1848, ch. 188), and aliens. (3 R. S., 
 p. 6 [721].) 
 
 The court shall discharge any person from serving 
 on a jury in the following cases : 
 
 1. When it shall satisfactorily appear that such person 
 is not at the time the owner, in his own right or in the 
 right of his wife, of a freehold estate in real property, 
 situated within the county, of the value of one hundred 
 and fifty dollars, and is not the owner of personal pro- 
 perty to the value of two hundred and fifty dollars, or 
 
70 THE constable's GUIDE. 
 
 is not possessed of the property qualification required 
 in the preceding counties specified. (Pages CY, 68.) 
 
 2. When it shall appear that such person is under 
 twenty-one years of age, or over sixty years of age, or 
 that he is not in possession of any of his rational 
 faculties. 
 
 3. When there is any legal exception against such 
 person. 
 
 4. When such person is a non-commissioned officer, 
 musician, or private of any uniform company or troop, 
 and is duly equipped and uniformed according to law, 
 and* shall claim such exemption. The evidence of such 
 exemption shall be the certificate of the commanding 
 officer of the company or troop, that the person claiming 
 the same is a member of such company, and is duly 
 equipped and uniformed according to law. Such cer- 
 tificate must be dated within three months of the time 
 of presenting the same, and the signature must be veri- 
 fied by oath. Every such certificate shall be filed 
 with the clerk of the court to which it shall be offered. 
 
 5. When such person is a member of any company 
 of firemen duly organized according to law. 
 
 6. Wlien such person is in the actual employment 
 of any glass, cotton, linen, woolen or iron manufacturing 
 company, by the year, month, or season. 
 
 7. When such person is a superintendent, engineer or 
 collector of any canal authorized by the laws of this 
 state, any portion of which shall be actually constructed 
 and navigated. 
 
 8. When such person is a minister of the gospel or 
 teacher in any college or academy, or when such person 
 is or shall be exempted by law from serving on juries. 
 
THE constable's GUIDE. 71 
 
 Tlie court to which any person shall be returned as 
 a juror, shall excuse such juror from serving at such 
 court, whenever it shall appear : 
 
 1. That he is a practising physician, and has patients 
 requiring his attention ; or 
 
 2. That he is a surrogate, or justice of the peace, or 
 executes any other civil office, the duties of which are 
 at the time, inconsistent with his attendance as a juror. 
 
 3. That he is a teacher in any school, actually em 
 ployed and serving as such. 
 
 4. When, for any other reason, the interests of the 
 public, or of the individual juror, will be materially 
 injured by such attendance, or his own health, or that 
 of any of the members of his family, requires his 
 absence from such court. (3 E. S., 713, 714 [415, 416].) 
 
 The constable having summoned the jury personally 
 should make a full return thereof, which he shall certify 
 and annex to the venire, and return to the justice. (3 R. 
 S., 441 [243].) 
 
 If a sufficient number of competent jurors shall not 
 appear, the constable will be directed to summon others 
 from the bystanders, or by another venire, which shall 
 be executed in the same manaer as the first. (3 R. S., 
 442 [243].) 
 
 After the trial of the cause, that is after hearing the 
 proofs and allegations of the parties, the jury are to 
 be kept together in some convenient place, under the 
 charge of a constable, until they all agree upon their 
 verdict ; and for that purpose the justice shall adminis- 
 ter to such constable the following oath : " You swear in 
 the presence of Almighty God, that you will, to the 
 utmost of your ability, keep the persons sworn as jurors 
 
72 THE constable's guide. 
 
 on this trial together in some private and convenient 
 place, without any meat or drink except such as shall 
 be ordered by me ; that you will not suflFer any com- 
 munication, orally or otherwise, to be made to them ; that 
 you will not communicate with them yourself, orally 
 or otherwise, unless by my order, or to ask them 
 whether they have agreed on their verdict, until they 
 shall be discharged ; and that you will not, before they 
 render their verdict, communicate to any person the 
 state of their deliberations or the verdict they have 
 agreed upon." (3 R. S., 442 [244].) 
 
 It is absolutely necessary that the justice administer 
 to the constable, the statutory oath. (Coughnet v. 
 Eastenhroolc, 11 Johns., 532,) and should he administer 
 an oath different from the one prescribed by statute, the 
 error would be fatal. {Day^. Wilber, 2 Caines, 135.) 
 But should the jury render their verdict in the presence 
 of the justice and without leaving their seats, it is not 
 necessary that a constable b6 placed in charge of them. 
 (Finh v Hall, 8 Johns., 438.) 
 
 The duties referred to in the allegations of the oath 
 must be strictly attended to on the part of the constable ; 
 he must see that they are not furnished with refresh- 
 ments, and especially with liquor by either party (see 
 Tower v. Sewett, 11 Johns., 134), he must not allow any 
 one to have any communication with them, not even 
 the justice should be allowed to give them instructions 
 without the express consent of the parties themselves 
 [Moody V. Pomeroy, 4 Denio, 115), though he may 
 allow the justice to give them further instructions upon 
 the law with the permission of both parties {Rogers v. 
 Moulthrop, 13 Wend., 274), and if the jury wish ho 
 
THE constable's guide. 73 
 
 may re-examine a witness, the parties consenting or 
 being present (Henlow v. Leonard, 7 Johns., 200), nor 
 should he allow the jury to take with them the minutes 
 of the testimony taken by the counsel on the trial 
 {Durfee v. Eveland, 8 Barb., 46), or the minutes of the 
 justice (Ifeil v. Aheletal., 24 Wend., 185), unless the par- 
 ties consent thereto. {Hancock v. Salmon, 8 Barb., 564.) 
 
 Whenever the jury come into court, the constable 
 should see that both plaintiff and defendant are pre- 
 sent, for if the jury should wish for further instruc- 
 tions on the law, or to hear further evidence on any 
 branch of the case, it is necessary that both parties be 
 present. (See Blackley v. Sheldon, 1 Johns., 32.) 
 
 An execution may be issued upon a judgment ren- 
 dered in a justices' court, at any time within five years 
 after the rendition thereof, and shall be returnable sixty 
 days from the date of the same. (Code, § 04.) It shall 
 be directed to any constable within the same county, and 
 shall command him to levy the debt or damages, and 
 costs, of the goods and chattels of the person against 
 whom the same shall be issued (excepting such goods 
 and chattels as are by law exempted from execution), 
 and to bring the money at a certain time (sixty days 
 from the date) and place therein to be mentioned before 
 such justice, to render to the party who recovered the 
 same : and when the execution is against the body 
 of the person of the defendant, it shall also command the 
 constable, that if no goods or chattels can be found, or 
 not sufficient to satisfy such execution, to take the body 
 of the person against whom the execution shall be issued, 
 and convey him to the common jail of the county, there 
 
74 THE CONSTABLES GUIDE. 
 
 to remain until such execution shall be satisfied and paid. 
 (3 R. S., 446 [240].) 
 
 The execution is to be made returnable sixty days 
 from the date [Bander v. Burley, 15 Barb., 004), and 
 it will be good if directed to be returned " within sixty 
 days from the date. (Price v. Shipps, 16 Barb., 585.) 
 And it must be dated on the day when it actually 
 issued (3 R. S., 447 [25 Ij), and must be entirely filled 
 up by the justice, leaving no blank either in the date or 
 otherwise at the time of its delivery to the ofiicer or it 
 will be void (3 R. S., 454 [267]), and the justice cannot 
 amend it after it has been executed. (Toof \. Bentley, 5 
 Wend., 276.) 
 
 When a judgment shall be obtained against joint 
 debtors, upon process which was not served upon all the 
 defendants, execution may be issued in form against all; 
 but the justice shall indorse thereon the names of such 
 of the defendants, who did not appear in the suit, as 
 were not served with process of warrant, summons or 
 attachment. And such execution shall not be served 
 upon the persons of the defendants whose names are so 
 indorsed thereon : nor shall it be levied on the sole pro- 
 perty of any such defendant ; but it may be collected of 
 the personal property of any such defendant, owned by 
 him as a partner of the other defendant appearing or 
 served with process, or with any of them. (3 R. S., 447 
 
 [251].) 
 
 If any execution, issued by a justice of the peace upon 
 a judgment rendered by him, be not satisfied, it may 
 from time to time be renewed by such justice, by an 
 indorsement thereon to that effect, signed by him, and 
 dated when the same shall be made. ( Vingcr v.-^'TFarc?, 
 
THE constable's GUIDE. V5 
 
 1 Wend., 551.) If any part of such execution has been 
 satisfied, 'the indorsement or renewal shall express the 
 sum -due on the execution. Every such indorsement 
 shall bo deemed to renew the execution in full force in 
 all respects, for sixty days from the date thereof. If an 
 execution be returned unsatisfied, in whole or in part, a 
 further execution for the amount remaining due may be 
 issued. (3 R. S., 448 [252].) 
 
 If an execution should be issued and enforced after 
 the judgment had been paid, the constable would not be 
 liable as a trespasser if the execution was right on its 
 face. {Lewis v. Palmer et al., 6 Wend., 307.) 
 
 Whenever any recovery shall be had before a justice 
 of the peace for any penalty or forfeiture, relating to 
 fisheries, the justice shall indorse upon such execution 
 the cause for which such judgment was rendered ; and 
 in case no goods or chattels can be found to satisfy such 
 execution, the constable having the same shall commit 
 such defendant to the jail of the county, and shall deliver 
 to the keeper thereof a certified copy of such execution 
 and indorsement, by virtue of which, such keeper shall 
 detain such defendant for a period not exceeding sixty 
 days, without allowing him the benefit of the liberties of 
 such jail. (3 R. S., 447 [251].) 
 
 An execuffion issued by a justice of the peace after 
 five years from the entry of judgment, without leave of 
 the court, is void. (See Code, § 64, sub. 12, and Bates 
 agt. James, 3 Duer, 45.) 
 
 When the constable receives the execution he must 
 at once proceed to take possession of the property. The 
 mere making a memorandum of the levy which he 
 annexes to or places with the execution, is not sufficient ; 
 
16 THE constable's GUIDE. 
 
 though, if the defendant gave hira an account of the 
 property, it would be a good levy as against him, but 
 not as against third parties. {Dresser v. Ainsworth, 9 
 Barb., 619 ; Price v. Shipps, 16 Barb., 585.) He " must 
 take actual possession," which, although the goods are 
 present, can only be done by manual acts, or by an oral 
 assertion that a levy is intended and which is acquiesced 
 in by those who are present and interested in the ques- 
 tion. A levy cannot rest in a mere undivulged inten- 
 tion to seize property. Something more is required : 
 there must be possessory acts to indicate a levy, or it 
 must be asserted by word of mouth. So that what is 
 thus done by the officer, if not justified by the process 
 in his hands, will make him a trespasser. (^Camp v. 
 Chamberlain, 5 Denio, 198.) 
 
 The constable after taking the goods and chattels into 
 his custody, by virtue of an execution, shall indorse 
 thereon the time of levying the same, and immediately 
 give public notice by advertisement, signed by himself 
 and put up at three public places in the city or town, 
 where such goods and chattels shall be taken, of the time 
 and place within such city or town, when and where 
 they will be exposed to sale. Such notice shall describe 
 the goods and chattels taken, and shall be put up at 
 least five days before the time appointed for the sale. 
 
 At the time and place so appointed, if the goods and 
 chattels be present and pointed out to the inspection 
 and examination of the bidders, the constable shall 
 expose them to sale at vendue, to the highest bidder. 
 He shall return the execution and pay the debt or 
 damages, and costs levied, to the justice who issued the 
 
THE CONSTABLE S GUIDE. 
 
 same, returning the overplus, if any, to the persor 
 whom the execution issued. (3 R. S., 448 [252]'.) 
 
 The constable should use every endeavor to make the 
 property within the lifetime of the execution. But 
 if he should have the property on hand at the time the 
 first execution has nearly run out, the execution may be 
 renewed on the last day it has to run, and being so re- 
 newed, it will retain its lien on goods before levied upon 
 under it (Chapman v. Fuller, *l Barb., 70), and the sale 
 may be had under the renewal. (People v. Hopson, 1 
 Denio, 5 74.) 
 
 The constable will be liable for damages if there is 
 property of the defendant and he does not have the 
 money on the return day of the execution, unless he has 
 a good and sufficient excuse therefor. If he has any 
 doubt as to whether the property found is the property 
 of the defendant, he may summon a jury to try the right 
 of property before making his return. (Piatt v. Sherry, 
 1 Wend., 236.) 
 
 Where a constable summoned a jury of inquiry as 
 to the claim to the property levied on ; it was held that 
 the inquisition was no justification in action of trespass 
 brought against the constable, but went only in mitiga- 
 tion of damages,,though such inquisition may, in many 
 cases, justify the officer for making a return of nulla 
 bona. (Townsend v. Phillip, 10 Johns., 98.) And a 
 plaintiff in an execution is not bound to tender a bond 
 of indemnity until after a jury has passed upon the 
 question of property. (Plaits v. Sherry, 7 Wend., 236.) 
 But if the plaintiflF in the execution, offer, in writing, to 
 indemnify the constable, he is bound to proceed and sell, 
 
 1* 
 
78 THE constable's guide. 
 
 and cannot excuse himself by taking an inquisition. 
 {Van Cleef v. Fleet, 15 Johns., 147.) 
 
 The conduct of constables, upon executions from the 
 justices' court, must be governed by the same law as 
 that of sheriffs upon executions from the higher courts, 
 where there is no statute regulation. He cannot recover 
 his fees where he has levied upon property and returns 
 that it remains on hand for want of buyers. To entitle 
 him to his fees, he must make the money, except where 
 he is prevented by the act of the plaintiff or by opera- 
 tion of law. He must levy and sell in due season. If no 
 bidders attend, he should postpone the sale, and give 
 notice to the plaintiff, who should attend and bid him- 
 self. And if he do not, the constable will be excused, 
 in returning that the property remains on hand for want 
 of buyers. So he would be excused in making such a 
 return, if he could not sell the property, but at a great 
 sacrifice. Yet after he has made such a return, he must 
 proceed and sell, the first opportunit}'. {Pixleyy. Butts, 
 2 Cow., 421.) 
 
 The constable should always make an inventory of the 
 property levied upon, but the making of an inventory 
 is not absolutely necessary to constitute a valid levy 
 under the execution. (Watti v. Cleaveland, 3 E. D. 
 Smith, 553.) 
 
 Where the goods are in a store, barn, or warehouse 
 not annexed to a dwelling-house, or forming any part 
 of the curtilage, the constable may break open the door 
 of such building and take possession of the goods and 
 make an inventory of them, or of a sufficient portion to 
 satisfy the execution. (Haggerty v. Wilber, 16 Johns., 
 287.) Bathe may not enter unbidden a dwelling-houso 
 
THE constable's GUIDE. "79 
 
 ■where the outer door is closed merely by a latch in the 
 ordinary way {Curtis v. Hubbard, 1 Hill, 336), and 
 should he do so he may be resisted, not only by the 
 owner of the house, but also by a guest of th« owner, in 
 his absence. [Curtis v. Hubbard, 4 Hill, 43*7.) 
 
 The seizure of the goods, creates a lien thereon which 
 the officer may enforce against all parties"~or persons 
 [Desell y. Odell, 3 Hill, 215), but as soon as the judg- 
 ment is paid the lien ceases. The general property still 
 remains in the debtor, and he is not divested of it until 
 a sale. (See Green v. Burke, 23 Wend., 490.) 
 
 "Where an officer takes goods by virtue of an execu- 
 tion he may remove them to his own warehouse, or he 
 may if he have confidence in the owner leave them with 
 him, or he may deliver them to h third party to be kept, 
 on his giving a receipt to return them, and when he 
 has once levied under the execution, property sufficient 
 to satisfy it, he cannot make a second levy. {Hoyt v. 
 Hudson, 12 Johns., 207.) 
 
 Whenever any execution shall be issued against the 
 property of any person, his goods and chattels, situated 
 within the jurisdiction of the officer to whom such ex- 
 ecution shall be delivered, shall be bound only from 
 the time of the delivery of the same to be executed 
 (3 R. S., 645 ; Haggerty v. Wilber, 16 Johns., 287.) And 
 where several executions are placed in the hands of an 
 officer they are to have priority in the order in which 
 they came to the hands of the officer. ( Camp v. Chamber- 
 lain, 5 Denio, 198.) 
 
 But any execution issued out of a court of justice 
 of the peace, if actually levied, shall have preference 
 over any other execution issued out of any court, 
 
80 THE constable's GriDB. 
 
 whether of record or not, which shall not have been 
 previously levied. (3 R. S., 645 [366].) 
 
 A levy under one execution inures as a levy under 
 one or more other executions which afterwards comes 
 to his hand, and the levy would be good although at 
 the time he received the second execution the first one 
 remained dormant in his hands by reason of instruc- 
 tions for a delay, the oflBcer by the first levy having the 
 custody and control of the property. (Peck v. Tiffany, 
 2 Com., .451.) 
 
 When the property levied upon is left in the posses- 
 sion of the defendant, the oiSeer may sell on the defen- 
 dant's premises, and third persons may rightfully attend 
 there as bidders. [People v. Hopson, 1 Denio, 575.) 
 
 "Where the execution is against any person who is a 
 tenant the constable may levy on any property which 
 the tenant has a right to remove [Stewart v. Doughty, 
 9 Johns., 108) ; such as growing grass [Smith w.JenJcs, 
 
 1 Denio, 580) ; wheat in the sheaf ( Whipple v. Foote, 
 
 2 Johns., 418) ; and growing trees that have been sold 
 by the owner of the land, although not at the time cut 
 down. [Bank of Lansingburgh v. Crary, 1 Barb., 542.) 
 
 Such articles as are properly fixtures, and form a part 
 of the realty, cannot be taken on execution ; but when 
 they have been separated from the realty by a person 
 authorized to separate them, they become personal pro- 
 perty, and may be taken [Morgan v. Varick, 8 Wend., 
 587), but if taken from the realty for the purpose of 
 preservation and to be returned to the same place in 
 their season, as hop poles, they still remain real estate 
 and cannot be levied on. [Bishop v. Bishop, 1 Ker., 
 12.3.) But stoves, mills, and machinery, and presses 
 
THE COXSTABLB's GUIDE. 81 
 
 not permanently attaclied to the freehold, may be levied 
 on. (Walker v. Sherman, 20 Wend., 636 ; Freeland v. 
 Southioortk, 24 Wend., 191; Heermance y. Vernoy, 6 
 Johns., 5 ; Holmes v. Tremper, 20 Johns., 29.) 
 
 Where land is let for agricultural purposes, the 
 manure made on the farm belongs to it, and not to the 
 tenant, unless there is a stipulation or custom to the 
 contrary (Middlebrook v. Corwin, 15 Wend., 169), and 
 that whether lying in the barn-yard or is in heaps. 
 (Goodrich V. Jones, 2 Hill., 142.) Fencing materials on 
 a farm which have been used as part of the fences, but 
 are temporarily detached, without any intent of divert- 
 ing them from their use as such, are a part of the free- 
 hold, and neither fences nor rails can be taken on an 
 execution against the tenant. (Id.) 
 
 Upon executions against the propertyof a defendant the 
 constable shall levy upon any current gold or silver coin 
 belonging to such defendant, and shall pay and return 
 the same as so much money collected, without exposing 
 the same for sale at auction. And upon such executions, 
 the officer may levy upon and sell any bills or other 
 evidences of debt, issued by any moneyed corporation, 
 or by the government of the United States, and circu- 
 lated as money, which shall belong to the defendant in 
 such execution. (3 E. S., 645 [366].) 
 
 But a chose in action cannot be levied upon as a 
 promissory note (Ingalls agt. Lord, 1 Cow., 240), or 
 bank shares, or shares in a public library. {Denton v. 
 Livingston, 9 Johns., 9Y.) 
 
 When goods or chattels shall be pledged for the pay- 
 ment of money, or the performance of any contract or 
 agreement, the right and interest in such goods, of the 
 
82 THE CONSTABLES GUIDE. 
 
 person making such pledge, may be sold on execution 
 against him, and the purchaser shall acquire all the right 
 and interest of the defendant, and shall be entitled to 
 the possession of such goods and chattels, on complying 
 ■with the terms and conditions of the pledge. (3 K. S., 
 645 [366] ; White v. Cole, 24 Wend., 141.) 
 
 Chattels which are mortgaged may be seized and the 
 interest of the mortgagor therein sold on an execution 
 against the mortgagor, where they are in his possession, 
 and he, at the time of the seizure and sale, is, by the 
 terms of the mortgage, entitled to their possession for a 
 definite period. (Hull v. Carnley, shff., 1 Ker., 501.) But 
 ifthe mortgagee has an immediate right of possession, 
 the property cannot be levied on and sold. {S. C, 2 
 Duer, 99.) The sale, however, is confined to the inte- 
 rest of the mortgagor and conveys his right subject to 
 that of the mortgagee. (Id.) 
 
 The right and interest of a pledgor cannot be sold on 
 execution unless the goods be present and within the 
 view of those attending the sale : and the constable may 
 take actual possession of the goods and hold them until 
 the sale. And after the sale the constable cannot 
 deliver the possessioij of the goods, as the pledgee is 
 entitled to the possession of the goods until the pur- 
 chaser redeems them according to the condition of the 
 pledge. {Bakewell v. JEllsworth, 6 Hill, 484, and see 
 Stief V. Hart, 1 Com., 20.) 
 
 A constable shall not levy upon or sell any property, 
 or imprison a defendant, upon any execution, after the 
 time limited therein for its return, unless such execu- 
 tion shall have been renewed. Nor shall any constable 
 do any act under a renewed execution, after the expira- 
 
TUB constable's guide. 83 
 
 tion of the time or times for which the same may have 
 been renewed. (3 E. S., 450 [253] ; Bander v. Bur- 
 ley, 15 Barb., 604.) 
 
 If the term of office of the constable expire before 
 the time within which the collection or return of such 
 execution is required by law, he must and may proceed 
 in all matters relative to said execution, .in the same 
 manner as if the term of office of such constable had 
 not expired. (3 R. S., 461 [274]; Aldennan v. Share, 
 1 Wend., 220.) 
 
 In cases commenced by attachment, and where no 
 personal service has been made on the defendant, or he 
 has not appeared in the action, the execution can be 
 enforced only against such property as was seized under 
 the attachment. (3 E. S., 464; Laws of 1831, chap. 
 300, § 39.) 
 
 The constable should not levy upon more goods than 
 will be sufficient to satisfy the execution, though if he 
 take but a few more than sufficient for that amount he 
 will not render himself liable, but if he take an un- 
 reasonable amount, or if he select such articles to annoy 
 the defendant or unnecessarily inconvenience him he 
 would be liable to an action for damages. (Desell v. 
 Odell, 3 Hill, 215 ; Piatt v. Sherry, 1 Wend., 236.) 
 
 The levying upon sufficient personal property does 
 not of itself satisfy the judgment ; and he may levy 
 upon additional property at another time and sell it 
 without making himself liable as a trespasser. {Denvrey 
 V. Fox, 22 Barb., 522), or if he has levied upon pro- 
 perty supposing it to be the property of the defendant, 
 and a third party claims the property and recovers the 
 proceeds of sale, another execution may issue or other 
 
84 THE constable's guide. 
 
 property may be levied on and sold. [Richardson v. 
 McBougal, 19 Wend., 80 ; Piper v. Elwood, 4. Denio, 
 165.) So, too, if the defendant does anything to defeat 
 the effect of the levy and sale. (Newland v. Baker, 21 
 Wend., 264.) 
 
 At the time and place appointed for the sale, if the 
 gdods and chattels be present, and pointed out to the 
 inspection and examination of the bidders, the con- 
 stable shall expose them to sale at vendue, to the 
 highest bidder (3 R. S., 448 [252]), and shall ofifer them 
 for sale in such lots and parcels as shall be calculated to 
 bring the highest prices. (3 E. S., 648 [367.J) The 
 goods should be pointed out specifically and sold sepa- 
 rately [Sheldon v. Soper, 14 Johns., 353), if not so pre- 
 sented no property in them v^ill pass to the purchaser 
 [Cresson v. Stout, 17 Johns., 116) ; and where a part of 
 the property is present and part absent from the sale, 
 the sale is valid only as to the property present. {Linnen- 
 doll V. Doe et al., 14 Johns., 222.) 
 
 The constable should sell only so much property as 
 will satisfy the execution, and which can conveniently 
 be sold separately ; and the constable's authority over 
 the property ceases, on the execution being returned 
 satisfied, so that he cannot then remedy any defect in 
 the first sale, by reselling, assigning, or deeding the 
 property over again. (Jackson et al. v. Smith, 1 Johns. 
 Ca., 284.) 
 
 If the constable have several executions against the 
 same defendant he should sell and satisfy the executions 
 in the order in which they were received by hira, for if 
 he sell the whole on a junior execution, the sale will bo 
 valid, and pass a good title to the pnrchasoi-, but the 
 
THE constable's guide. 85 
 
 constable will make himself liable to tbe plaintiff on the 
 execution which was first given him to enforce. {Sand- 
 ford V. Hoosa, 12 Johns., 162.) 
 
 The constable may adjourn the sale to a different 
 time and place, even after it has commenced, and the 
 completion of the sale at a difierent time and place, will 
 be valid, if there be no fraud or abuse. {Tinkom v. Purdy, 
 5 Johns., 346.) But if he ask or receive any thing for 
 postponing the sale of any property under execution, he 
 shall be deemed guilty of a misdemeanor. (3 R. S., 
 454 pBY.]) 
 
 No constable or other ofiBcer shall, directly or indi- 
 rectly, purchase any goods qr chattels at any sale made 
 by him, upon execution ; but every such purchase shall 
 be absolutely void. (3 E. S., 448 [252.]) 
 
 On sale by the constable, the same rules prevail as 
 govern in other auction sales. The bargain is not struck 
 till the article is knocked down, until which, the bid 
 being a mere proposition, may be vrithdrawn. But when 
 the article is knocked down, if the bidder do not receive 
 it and pay the money, the article may be sold again, and 
 the bidder is liable to pay the constable the loss upon 
 the second sale; or the constable may prosecute an action 
 against the purchaser for goods bargained and sold. 
 Where on a sale of goods, a single accepted bid amounts 
 to fifty dollars or more (which is very seldom the case) 
 it is perhaps necessary that the requisitions of the sta- 
 tute of frauds should be complied with, by a note or 
 memorandum in writing, earnest, or part delivery. 
 Indeed, there is great propriety in the constable's exe- 
 cuting and delivering to the purchaser a memorandum of 
 8 
 
86 THE constable's guide. 
 
 sale whatever the amount of his bid maybe. (2 Cow. 
 Tr., 1077, 2d ed.) 
 
 For want of goods and chattels whereon to levy, the 
 constable shall, in the cases authorized by law, if the 
 execution require it, take the body of the person against 
 whom the execution shall have issued, and convey him 
 to the common jail of the city or county, the keeper 
 whereof is hereby required to keep such person in safe 
 custody, in jail, until the debt or damages and costs shall 
 be paid, or he be thence discharged by due course of law. 
 (3 R. S., 448 [252.]) 
 
 It is the duty of the constable to search for property, 
 in all cases, before taking the body ; and if he take the 
 body immediately when the defendant has property in 
 his open and visible possession, subject to execution, and 
 which might have been found with reasonable diligence, 
 the constable is a trespasser. But he has a reasonable 
 time to make search for the property, and is not answer- 
 able for omitting to arrest the defendant until such 
 search can be made ; and he is justified in making an 
 immediate arrest if the defendant tells him he has no 
 property. (HolUster v. Johnson, 4 Wend., 639.) 
 
 As a general rule, the constable is not liable for false 
 imprisonment, for arresting the defendant, unless the 
 defendant shows affirmatively, that he had property 
 clearly subject to execution, and that he disclosed the 
 fact to the constable, who refused to seize it. [Barhydt 
 V. Valk, 12 Wend., 145.) 
 
 No female shall be arrested or imprisoned upon any 
 execution issued from a justices' . court. (3 R. S., 449 
 [253.]) 
 
 The following property, when owned by any person 
 
THE constable's GUIDE. 87 
 
 being a householder, shall be exempt from levy and sale, 
 under any execution, and such articles thereof as are 
 movable, shall continue so exempt, while the family of 
 such person, or any of them, may be removing from one 
 place of residence to another : 
 
 1. All spinning-wheels, weaving looms and stoves, put 
 up or kept for use in any dwelling house. 
 
 2. The family Bible, family pictures and school books, 
 used by or in the family of such person ; and books not 
 exceeding in value fifty dollars, which are kept and used 
 as part of the family library. 
 
 3. A seat or pew occupied by such person or his fam- 
 ily, in any house or place of public worship. 
 
 4. All sheep, to the number of ten, with their fleeces, 
 and the yarn or cloth manufactured from the same ; one 
 cow, two swine, the necessary food for them ; all neces- 
 sary pork, beef, fish, flour and vegetables, actually pro- 
 vided for family use : and necessary fuel for the use of 
 the family for sixty days. 
 
 5. All necessary wearing apparel, beds, bedsteads and 
 bedding, for such person and his family ; arms and 
 accoutrement, required by law to be kept by such per- 
 son ; necessary cooking utensils ; one table ; six chairs ; 
 six knives and forks ; six plates ; six teacups and saucers ; 
 one sugar dish ; one milk pot ; one tea pot and six 
 spoons ; one crane and its appendages, one pair of and- 
 irons and a shovel and tongs. 
 
 6. The tools and implements of any mechanic, neces- 
 sary to the carrying on of his trade, not exceeding 
 twenty-five dollars in value. (3 R. S., 645, 646, [367] ; 
 Laws of 1842, ch. 157 ; Laws of 1858, ch. 107; Laws 
 of 1860, ch. 152.) 
 
88 THE constable's guide. 
 
 In addition to the articles above-mentioned as exempt 
 by law from levy and sale under execution, there shall 
 be exempted from such sale necessary household far- 
 niture, and working tools and team, owned by any person 
 being a householder, or having a family for which he 
 provides, to the value of not exceeding two hundred and 
 fifty dollars, and in addition thereto, there shall also be 
 exempted from such levy and sale, the necessary food 
 for said team for a period not exceeding ninety days; 
 provided that such exemption shall not extend to any 
 execution issued on demand for the purchase money of 
 such furniture, or tools, or team, or the food for said 
 team, or the articles now enumerated by law. (Laws 
 of 1859, chap. 134, p. 343.) 
 
 And by a law passed April 3, 1860 (chap. 152, p. 
 245), one sewing machine, with the appurtenances 
 thereunto belonging is also exempt. 
 
 The fleeces, or the yarn or cloth manufactured from 
 the fleeces of ten sheep, are exempted from execution 
 while in the hands of a householder, whether he be or 
 be not the owner of sheep {ITall v. Penney, 11 Wend., 
 44) ; so, too, of yarn not made into cloth. {Bracket v. 
 Watkins, 21 Wend., 68.) It is not necessary that the 
 potatoes should be dug and housed to exempt them from 
 execution. {Carpenter v. Serrington, 25 Wend., 370.) 
 
 The cow of the householder is exempt from levy and 
 sale, though the head of the family has left the state, 
 if he leaves his family living together, and if at the time 
 the family is moving from one house to another, and 
 the wife of the householder consent that the constable 
 may make the levy. [Woodward v. Murray, 18 Johns., 
 400.) 
 
89 
 
 In ordinary cases a wagon is not exempt by name 
 from levy and sale, although under certain circumstances 
 it may be included, as exempt, as in " working tools " 
 {Morse agt. Keyes, 6 How., 1 8) ; but if it is a one horse 
 wagon belonging to a practising physician it is exempt 
 (Eastman agt. Cogswell, 8 How., 75) ; so, too, his horse 
 where he is a country physician, and his patients reside 
 at too great a distance to visit them on foot. ( Wheeler 
 agt. Cropsey, 5 How., 288.) 
 
 The professional books necessary, to a professional 
 man, who supports a family, for the practice of his pro- 
 fession, are exempt from execution, and also a reasonable 
 amount of miscellaneous matter, as well for his use as 
 for the use of the family. The surgical instruments of a 
 physicijta are exempt as his tools. {Rohinson^s case, 3 
 Abb., 466.) 
 
 It has been held that a team may be two or more 
 horses or oxen harnessed together ; the, harness may 
 therefore be regarded as exempt ; but a wagon, a cart 
 or sleigh cannot be regarded as a part of a team 
 {Morse agt. Keyes, 6 How., 21) : and also that a wagon 
 is not exempt, at law, as such, from levy and sale on 
 execution. But when customarily used in connection 
 with a horse or horses, and harness, it may constitute a 
 part of a team, and will come within the meaning of the 
 word team as used in the statutes of exemption, and 
 not bo liable to be sold on execution. {Dains v. Prosser, 
 32 Barb., 290.) 
 
 A single horse used by a debtor with a hired horse 
 to make a team will be exempt. {Lockwood v. Younglove, 
 27 Barb., 505.) 
 
 Although a debtor has necessary household furniture 
 
90 THE constable's guide. 
 
 and working tools, in addition to his team, worth S150, 
 or property of each separate description worth $150, it 
 does not follow that the creditor can take the whole. 
 It is in such a case, the right of the debtor to determine 
 out of which description of property he daims the 
 exemption. (Id.) 
 
 The party claiming an exemption for his cooking 
 utensils, must show aflSrmatively and certainly that the 
 cooking utensils taken in execution were in fact necessary, 
 and not merely that they might be useful in cooking. 
 {Van SicMer v. Jacobs, 14 Johns., 434.) And the ques- 
 tion whether a given article was necessary is one of fact 
 and not of law, and where the jury found that a clock 
 owned by a householder was not exempt held that the 
 verdict could not be disturbed on certiorari. ( Willson 
 V. Ellis, 1 Denio, 462.) 
 
 Where a party claims the exemption of a wagon, as 
 being a part of a team, he is bound to show, affirmatively, 
 that the team is worth as a whole, less than $250, or 
 docs not exceed that sum. If there is no proof to show 
 what the valu§ of the team was, as an entirety, or what ' 
 was the value of the several parts, or of any part thereof, 
 except the wagon the exemption cannot be allowed. 
 {Bains v. Frosser, 32 Barb., 290.) 
 
 It has been provided that the exemption mentioned, 
 in addition to the specified articles, shall not apply to 
 any judgment rendered for a claim accruing for work 
 and labor performed in a family as a domestic. (3 R. S., 
 646 ; Laws of 1858, chap. 101.) 
 
 Where the judgment is for the purchase money 
 of certain articles made exempt from levy and sale on 
 execution, the execution on such judgment must be 
 
THE constable's guide. 91 
 
 enforced against the particular articles for the purchase 
 of -whioli the judgment was obtained, and not against 
 other property exempt by statute. [Cole v. Stevens, 9 
 Barb., 6Y6 ; S. C, 6 How., 424.) 
 
 TJie exemption of certain property from execution, 
 by the statute is a personal privilege of which the owner 
 alone can take advantage. His bailee or agent cannot 
 maintain an action on this ground, for property taken 
 in execution against the owner. {MicMes v. Tousley, 1 
 Cow., 114; Earl v. Camp, 16 Wend., 562.) 
 
 The constable shall return the execution and pay the 
 debt or damages and costs levied, to the justice who 
 issued the same, returning the overplus, if any, to the 
 person against whom the execution issued. (3 K. S., 
 448 [252.] ) 
 
 If a constable neglect to return an execution within 
 five days after the return day thereof, the party in whose 
 favor the same was issued may maintain an action of 
 debt against such constable, and shall recover therein 
 the amount of the execution, with interest from the 
 time of the rendition of the judgment upon which the 
 same was issued. But a constable shall not be liable 
 for not serving and returning an execution, upon which 
 the defendant's exemption shall have been indorsed, 
 if he duly collect and return the money payable by in- 
 stallments, or return the execution as to person and 
 property not found. (3 R. S., 449, 450 [253.] ) 
 
 The constable should always endeavor to levy and 
 sell, or to arrest and imprison within the lifetime of the 
 execution, or the revival thereof, because he will not be 
 protected for any act done by him under the execution, 
 after the time limited therein for its return, or after 
 
92 THE constable's guide. 
 
 the time or times for which the same may have been 
 renewed. (3 R. S., 450 [253.]) 
 
 If moneys be collected by a constable upon an execu- 
 tion, and not paid over by him according to law, an 
 action of assumpsit may be maintained by the party 
 entitled to such money, in his own name, upon the 
 instrument of security given by such constable and his 
 sureties, pursuant to the provisions of the second article, 
 of the third title, of the eleventh chapter of the Revised 
 Statutes ; and in such suit, the amount so collected, 
 with interest from the time of collection, shall be reco- 
 vered. (Id.) 
 
 In an action against an officer for neglecting to return 
 an execution, prima facie, the measure of damages is the 
 amount required by the execution. And it is not neces- 
 sary for the plaintiff to allege or prove special damages. 
 The officer may show in mitigation of damages, that the 
 defendant in the execution had no property upon which 
 he could have levied, but not that the judgment is still 
 collectible. (Ledyard v. Jones, 3 Sel., 550.) 
 
 An action of debt lies not only against the constable, 
 but also against the sureties for the mere neglect to 
 return an execution : and it is not necessary to show 
 moneys collected by him, to sustain the action [Sloan 
 et al. V. Case, 10 Wend., 3'70) : the sureties are liable 
 equally with the constable. 
 
 The constable should pay over the surplus moneys as 
 soon as he is able to ascertain the amount of the same, 
 although he has until the return day to do so. And an 
 action against a constable for the recovery of overplus 
 moneys collected by him on execution, cannot be sus- 
 tained, where the action is brought before the return 
 
THE constable's GUIDE. 93 
 
 day of the execution, and where no demand of such 
 moneys has been made. The action is premature. [Bor- 
 tel agt. Ostrander, 15 How., 5Y2.) 
 
 The return of the constable must be signed by him, 
 and for a failure he will be liable to an action at the suit 
 of any party aggrieved. (3 R. S., 739 [440.] ) 
 
 Though the constable has until the return day to 
 serve an execution against the body, yet if he arrest him 
 within the time for the return, it will be an escape to 
 suffer him to go at large, which will not be excused by 
 his having the defendant in custody on the return day. 
 [Pulver V. Mclntyre, 13 Johns., 503.) But if the con- 
 stable has duly arrested the defendant and he escapes 
 without the knowledge or consent of the oiBcer, he may 
 retake the defendant even after the time for the return 
 of the execution. 
 
 Where two judgments, one larger and one smaller, 
 were docketed at the same time, against the same defen- 
 dant, in favor of different plaintiffs ; executions were 
 simultaneously issued, delivered and levied on personal 
 property which was sold under both, and purchased by 
 each plaintiff, at bids differing in amount ; held, that 
 the moneys were to be equally divided between the two 
 executions, till the smaller one was satisfied ; the residue 
 to be applied on the larger. (^Camphelt v. Buger, 1 Cow., 
 215.) 
 
 The constable is not required to keep the execution 
 in his hands sixty days. The return cannot be sooner 
 compelled, but if he is satisfied that there is no property, 
 he may return it at his own risk at any time. (Morange 
 V. Edwards, 1 E. D. Smith, 414.) 
 
 Where a constable has returned the execution satis- 
 
94 THE constable's guide. 
 
 fied by a sale of property, and the property is afterwards 
 recovered in an action by the defendant, he cannot 
 revive the judgment by a supplemental return of the 
 fact. {Hossv. Hicks, 11 Barb., 481.) 
 
 If either party appeals from the decision of the justice, 
 and desires a stay of execution, he must give a proper 
 undertaking, and the delivery of the undertaking to the 
 court below shall stay the issuing of execution, or, if it 
 have been issued, the service of a copy of the under- 
 taking, certified by the court below, upon the officer 
 holding the execution, shall stay further proceedings 
 thereon. (Code, § 357.) 
 
 On appeal from a judgment of the marine or district 
 courts in the city of New York, if an execution has 
 been issued from such courts, and the officer has levied 
 upon the defendant's goods, the giving of an undertaking 
 on appeal, as required by section 357 of the Code, and 
 the service of a certified copy on the officer, arrest the 
 proceedings as they are at that time ; but the levy is 
 not thereby discharged, nor can the appellant require 
 that the goods levied upon be returned to him before a 
 final disposition of the appeal. {Smith v. Allen, 2 E. D. 
 Smith, 259.) 
 
 Where the undertaking was insufficient to stay the 
 appeal the defendant will be allowed further time to 
 execute and file a further undertaking. {Stemhaus a'gt. 
 Schmidt, 5 Abb., 66.) 
 
CHAPTER IV. 
 
 or THE POWER AND DUTIES OF A CONSTABLE IN THE 
 EXECUTION OP PROCESS IN VARIOUS PROCEEDINGS 
 COGNIZABLE BY A JUSTICE OP THE PEACE. 
 
 1. In landlord and tenant proceedings to recover 
 possession of demised premises. 
 
 Any tenant or lessee at will, or at sufferance, or for 
 any part of a year, or for one or more years, of any 
 houses, land or tenements, and the assigns, under ten 
 ants, or legal representatives of such tenant or lessee, 
 may be removed from such premises, by any judge 
 of the county courts of the county, or by any justice 
 peace of the city or town where the premises are situ 
 ated, or by any mayor or recorder of the city where 
 such premises are situated, or in the city of New York, 
 by the mayor, recorder, any justice of the marine court, 
 or any one of the justices of the district courts of the 
 city of New York, in the following cases : 
 
 1. Where such person shall hold over and continue 
 in possession of the demised premises, or any part 
 thereof, after the expiration- of his term, without the 
 permission of the landlord. 
 
 2. Where such person shall hold over without such 
 permission as aforesaid, after any default in the payment 
 of rent, pursuant to the agreement under which such 
 premises are held, and a demand of such rent shall have 
 
96 THE constable's guide. 
 
 » 
 
 been made, or three clays' notice in writing requiring the 
 payment of such rent, or the possession of the premises, 
 shall have been served by the person entitled to such 
 rent, on the person owing the same, in the manner here- 
 after described for the service of the summons, to recover 
 possession. 
 
 3. Where the tenant or lessee of a term of three years, 
 or less, shall have taken the benefit of any insolvent act, 
 or been discharged under any act for the relief of his 
 person from imprisonment during such term. 
 
 4. Where any person shall hold over and continue in 
 possession of any real estate which shall have been sold 
 by virtue of an execution against such person, after a 
 title under such sale shall have been perfected. 
 
 The landlord or lessor, his legal representatives, agents, 
 or assigns may make proof of the facts in writing by 
 affidavit and present them to the proper officer who, on 
 receiving such affidavit, shall issue his summons, des- 
 cribing the premises of which the possession is claimed, 
 and requiring any person in the possession of said pre- 
 mises, or claiming the possession thereof, forthwith to 
 remove from the same or show cause before the said 
 magistrate, within such time as shall appear reasonable, 
 not less than three nor more than five days, why pos- 
 session of said premises should not be delivered to such 
 applicant, provided, however, that in the cases where a 
 person continues in possession of "the demised premises, 
 after the expiration of his term, without permission of 
 his landlord, the magistrate may direct such summons 
 to be made returnable on the same day. 
 
 This summons may be served by a constable, and 
 served as follows : 
 
THE constable's GUIDE. 07 
 
 1. By delivering to the tenant to whom it shall be 
 directed, a true copy thereof, and at the same time 
 showing him the original ; or 
 
 2. If such tenant be absent from his last or usual 
 place of residence, by leaving a copy thereof at such 
 place, with some person of mature age residing on the 
 premises, or if there be no such person residing thereon, 
 then such service may be made by affixing such copy 
 upon a conspicuous part of the said demised premises. 
 (3 E. S., 836, 837 [513, 514.] ) 
 
 The summons should be directed to the tenant by 
 name, for if the direction is left blank it will be defec- 
 tive {Duel V. Bust, 24 Barb., 438), even though it 
 should be served on the proper party. {CunningJiam v. 
 Cfoelet, 4 Denio, 71.) 
 
 Having made such service the constable should return 
 the summons, with his proof of the service indorsed 
 thereon, to the magistrate who issued the same. 
 
 Proof of the manner of service should be by aflSdavit ; 
 and if the tenant is absent, the aflBdavit of service must 
 state that he was absent from his last or usual place of 
 residence, and that the copy was left with a person of 
 mature age. {Camercnl v. McDonald, 1 Hill, 512.) 
 
 If at the time appointed no sufficient cause be shown 
 to the contrary, and due proof of the service of such 
 summons be made to the magistrate, he issues his 
 warrant to the officer commanding him to remove all 
 persons from the said premises, and to put the said 
 applicant to such magistrate, into the full possession 
 thereof. 
 
 But if on the return day of the summons, the person 
 claiming possession of the demised premises file an affi- 
 9 
 
98 THE constable's guide. 
 
 davit, with the magistrate, denying the facts or any of the 
 facts upon which the summons issued, the matter thus 
 controverted is to be tried by the magistrate, or jury. 
 Either party may demand a jury, and at the time of the 
 demand must pay to such magistrate the necessary costs 
 and expenses of obtaining such jury. 
 
 In order to form such jury, the magistrate nominates 
 twelve reputable persons qualified to serve as jurors in 
 courts of record, and issues his precept to the sheriflF, 
 constable or marshal to summon the persons so nomin- 
 ated, to appear before such magistrate at such time and 
 place as he shall therein appoint, not more than three 
 days from the date thereof, for the purpose of trying the 
 said matters in difference. 
 
 And the constable should see that no more than 
 twelve are named in the precept and summoned, as the 
 summoning a larger number would be error. {Farring- 
 ton V. Morgan, 20 Wend., 207.) 
 
 The jury are to be summoned, by personal service, 
 which should be made on each of them at least twenty- 
 four hours before the return of the precept, and when 
 the constable should return the original precept, with 
 the time and manner of the service thereon indorsed. 
 
 Six persons from those summoned are to be drawn in 
 like manner as jurors are drawn in justices' courts, and 
 sworn well and truly to hear^ try and determine the 
 matters in difi^erence between the parties. 
 
 After hearing the allegations and proof of the parties, 
 the jury are to be kept together until they agree on 
 their verdict, by the sheriff or one of his deputies, or a 
 constable, or by some proper person appointed by the 
 magistrate for that purpose, who shall be sworn to keep 
 
THE constable's guide. 99 
 
 such jury as is usual in like cases of courts of record, or 
 in cases in the justices' courts. 
 
 If the decision of the magistrate or the jury is in favor 
 of the person claiming the possession, the magistrate 
 shall issue his warrant to the sheriff, or to any constable 
 of the county in which the premises are situated, com- 
 manding such officer to put such landlord, lessor or 
 other person into possession. (3 R. S., 837, 838 [514, 
 515] ; Laws of 185T, ch. 684; 1868 ch. 828.) 
 
 After the litigation has terminated and the officer has 
 received the warrant authorizing him to put the person 
 claiming the possession of the premises into possession, 
 he«hould at once proceed to execute the same, accord- 
 ing to the tenor thereof; and in doing this, if necessary, 
 he may call the power of the county to his aid, the same 
 as when called to enforce any other precept from a 
 court or magistrate. 
 
 Should it become necessary, the constable may sub- 
 poena witnesses in the foregoing proceedings in the same 
 manner, and make return of such service in the same 
 manner as in actions in the justices' courts. 
 
 2. As to idle and truant children. 
 
 It is made the duty of all constables as well as of all 
 police officers, if they find any child between the ages of 
 five and fourteen years, having sufficient bodily health 
 and mental capacity to attend the public schools, wander- 
 ing in the streets or lanes of any city or incorporated vil- 
 lage, idle and truant, without any lawful occupation, to 
 bring such child before any justice, police magistrates, or 
 justices of the district courts in the city of New York, for 
 examination, and also to cause the parent, guardian or 
 
100 THB constable's GUIDE. 
 
 master of such child, if he or she have any to be notified, 
 to attend such examination ; and to make complaint to 
 snch justice of the peace, police magistrate or justice of 
 the district court, to the end, to require the parent, 
 guardian or master to enter into an engagement, in writ- 
 ing, to the corporate authorities of the city or village, 
 that he will restrain such child from so wandering about, 
 will keep him or her on his own premises or in some 
 lawful occupation, and will cause such child to be sent 
 to some school at least four months in each year, until 
 he or she becomes fourteen years old. In case such 
 child has no parent, guardian or master, or none can be 
 found ; or if such parent, guardian or master refuse or 
 neglect, within a reasonable time, to enter into such 
 engagement, or to give iecurity, if required by such 
 magistrate, for the faithful performance of such engage- 
 ment, such justice shall, by warrant under his hand, com- 
 mit such child to such place as shall be provided for his 
 or her reception, by the corporate authorities of every city 
 and incorporated village. (2 E. S., 378, 379 ; Laws of 
 1853, ch. 185.) 
 
 3. Under the highway law. 
 Any person feeling himself aggrieved, or any commis- 
 sioner or commissioners feeling dissatisfied by any assess- 
 ment of damages for laying out, altering or discontinu- 
 ing any highway, may, within twenty days after filing 
 the assessment, signify the same by notice in writing, 
 and serving the same on the town clerk and on the 
 opposite party, asking for a jury to reassess the damages, 
 and specifying a time not less than ten nor more than 
 twenty days from the time of filing said assessment, 
 
THE CONSTABLE S GUIDE. 
 
 ■when such jury will be drawn at the clerk's oflSd^f 
 
 adjoining town of the same county by the town "^i^^ 
 thereof. The town clerk is to draw the names of twelve 
 persons from a box containing a list of the persons 
 selected according to law to serve as jurors in courts of 
 record. The town clerk is to give a certificate contain- 
 ing the names of the twelve persons so selected to the 
 party first asking for the reassessment ; and the party 
 receiving such certificate, shall, within twenty-four hours 
 thereafter, deliver the same to a justice of the peace of 
 the town wherein the damages are to be assessed ; and 
 it shall be the duty of the justice forthwith to issue a 
 summons to one of the constables of his town, directing 
 him to summon the persons named in said certificate 
 specifying in said summons a time and place of meet- 
 ing. And the constable, on the receipt of said sum- 
 mons, is forthwith to personally serve said summons on 
 each of the persons named for jurors therein. (2 R. S., 
 SOY, 398 ; Laws of 1847, ch. 455.) 
 
 Whenever a highway has been encroached upon by 
 fences erected by any occupant of the land, the commis- 
 sioners of highways of tte town, may, by an order in 
 writing, direct such fence to be removed. If the occu- 
 pant within five days deny such encroachment, the com- 
 missioners or some one of them, shall apply to any jus- 
 tice of the peace of the county for a precept, directed to 
 any constable of the town, to summons twelve freehold- 
 ers thereof, to meet at a certain day and place to be 
 specified in such precept, and not less than four days 
 after the issuing thereof to inquire into the premises. 
 
 The constable, on the receipt of the precept, is to 
 summon twelve freeholders as in the said precept directed, 
 9* 
 
102 THE constable's guide. 
 
 and also give at least three days' notice to the commis- 
 sioners of highways of the town, and to the occupant of 
 the land, of the time and place at which such freehold- 
 ers are to meet. The summons should be served and 
 returned in the same manner as a venire in the justices' 
 court. The constable should be very particular in sum- 
 moning the jury to see that each of them has the requi- 
 site qualification, although the justice who swears 
 them has authority to pass upon or adjudge as to 
 their qualifications. (Laws of 1862, chap. 243.) 
 The notice to be served on the commissioners 
 should be in writing, in order that it may be at- 
 tached to the papers as part of the proceedings. 
 
 On the trial, if the jury find that an encroachment 
 has been made, they make and subscribe a certificate in 
 writing stating the particulars of such encroachment, 
 and by whom made, which shall be filed with the town 
 clerk. The occupant shall remove his fences within sixty 
 days after the filing of such certificate (except that no 
 person shall be required to remove any fence under the 
 above mentioned proceedings, except between the first 
 day of April and the first day of Jt^ovember in any year), 
 or he forfeits fifty cents per day for every day the fence 
 remains unmoved after the sixty days shall have expired. 
 
 If the occupant does not remove his fence within the 
 sixty days after he receives the notice of the commission- 
 ers in those cases; when he does not appear to contest 
 the fact of encroachment, or within sixty days after filing 
 the certificate of the finding of the jury, the commis- 
 sioners may cause it to be removed; and a justice of the. 
 peace may issue his warrant to any constable under his 
 hand and seal, to collect the costs of such removal, from 
 
THE constable's GUIDE. 103 
 
 tie occupant found encroaching as aforesaid. Or if the 
 occupant does not, within ten days after the filing of the 
 certificate of the jury finding an encroachment, pay the 
 costs of such inquiry the justice shall issue a warrant 
 under his hand and seal to any constable to collect the 
 same. (2 R. S., 407, 408 [522.] ) 
 
 It is the duty of every overseer of highways, within 
 six days after any person who has been assessed to work 
 highways, and has failed to do so, and failed to render 
 any excuse for such failure to labor, and incurred a fine 
 or penalty for such neglect, to make complaint on oath 
 to one of the justices of the peace of the town, against 
 such delinquent. 
 
 The justice, to whom such complaint shall be made, 
 shall forthwith issue a summons directed to any consta- 
 ble of the town, requiring him to summons such delin 
 quent to appear forthwith before such justice, at some 
 place to be specified in the summons, to show cause why 
 he should not be fined according to law for such refusal 
 or neglect ; which summons shall be served (by such 
 constable) personally or by leaving a copy at his per- 
 sonal abode. 
 
 If upon the return of such summons no sufficient cause 
 shall be shown to the contrary, the justice shall impose 
 such fine as is provided by the statute for the offense 
 complained of, and shall forthwith issue a warrant under 
 his hand and seal, directed to any constable of the town 
 where such delinquent shall reside, commanding him to 
 levy such fine, with the costs of the proceedings, of the 
 goods and chattels of such delinquent. 
 
 The constable, to whom such warrant shall be directed, 
 shall forthwith collect the moneys therein mentioned. 
 
104 TDK constable's GriDE. 
 
 He shall pay the fine when collected to the justice who 
 issued the warrant, who is required to pay the same to 
 the overseer who entered the complaint, to be by him 
 expended in improving the roads and bridges in the 
 district of which he is overseer. (2 K. S., 391 [oll.J) 
 
 4. Beggars and vagrants. 
 
 It shall be the duty of every constable or other peace 
 oflBcer, whenever required by any person to carry such 
 vagrants (as are hereinafter described) before a justice 
 of the peace of the same town, or before the mayor, 
 recorder, or any one of the aldermen of the city in which 
 such vagrant shall be, for the purpose of examination, in 
 order that if it appears that such persons are vagrants 
 that they may be sent to the poor house, or the house 
 of correction or to prison. The persons referred to as 
 vagrants are described as follows : All idle persons who, 
 not having visible means to maintain themselves, live 
 without employment ; all persons wandering abroad and 
 lodging in taverns, groceries, beer houses, out-houscs, 
 market places, sheds or barns, or in the open air, and 
 not giving a good account of themselves ; all persons 
 wandering abroad and begging, or who go about from 
 door to door, or place themselves in the streets, high- 
 ways, passages or other public places to beg or to receive 
 alms, shall be deemed vagrants. (2 R. S., 879 [633.] ) 
 
 Should the complaint be made to the magistrate and 
 he issue his warrant to bring up such vagrant for exam- 
 ination, the warrant should be directed to a constable of 
 the county where the pauper resides; but it cannot be 
 executed by a constable of any other town than that 
 
THE constable's GUIDE. 105 
 
 •where the pauper resides. (Reynolds v. Orvis, 1 Cow., 
 269.) 
 
 5. Disguised persons. 
 
 Every person who having his face painted, discolored, 
 covered or concealed, or being otherwise disguised in a 
 manner calculated to prevent him from being identified, 
 shall appear in any public road or highway, or in any 
 field, lot, woods or inclosure, may be pursued and 
 arrested and brought before a magistrate of the same 
 county where he shall be arrested, and not giving a good 
 account of himself shall be deemed a vagrant, and, on 
 conviction, shall be committed to and imprisoned in the 
 county^jail, of the county where such person shall be 
 found, not exceeding six months. Every sheriflf, deputy 
 sherifi', constable, marshal of a city or other public 
 peace ofiicer, or other citizen of the county where such 
 person or persons shall be found disguised as aforesaid, 
 may, of his own authority and without process, arrest, 
 secure and convey to a magistrate residing in the county 
 where such arrest shall be made, any person who shall 
 be found having his face painted, discolored, covered or 
 concealed, or being otherwise disguised as aforesaid, to 
 be examined and proceeded against according to law ; 
 and it shall be the duty of any sheriflf, deputy sheriflf, 
 constable, marshal or other peace officer, whenever any 
 of them shall discover any person with his face so painted, 
 discolored, covered or concealed, or being otherwise dis- 
 guised as aforesaid, immediately to arrest, secure and 
 convey such person before a magistrate to be proceeded 
 with according- to law; and whenever any such officer 
 shall receive credible information of any person having 
 
106 THE CONSTABLES GUIDE. 
 
 his face so painted, discolored, covered or concealed, or 
 being otherwise disguised as aforesaid, it shall be the 
 duty of every such officer forthwith to pursue such per- 
 son and arrest, secure and convey him to a magistrate. 
 On the execution of the duties prescribed above, any 
 sheriff, deputy sheriff, constable, marshal or other peace 
 officer, shall be authorized to command any male in- 
 habitant of his county, or as many as he shall think 
 proper to assist him, in seizing, arresting, confining and 
 conveying to any magistrate, and committing to the 
 common jail of the county, every person with his face 
 so painted, discolored, covered or concealed, or being 
 otherwise disguised as aforesaid ; and any inhabitant so 
 commanded may provide himself or be provided with 
 such means and weapons as the officer giving such com- 
 mand shall designate. (2 R.S., 88p, 881; Laws of 1845, 
 chap. 3.) 
 
 6. Hawkers and Peddlers. 
 
 Persons are not authorized to travel from place to 
 place within this state, for the purpose of carrying to 
 sell or exposing to sale any goods, wares or merchandise, 
 of the growth, produce or manufacture of any foreign 
 country, unless he shall have obtained a. license as a 
 hawker and peddler from the secretary of state for this 
 state. The license may be issued at any time, for any 
 term not less than six months, nor more than one year : 
 and every license granted may be renewed on the 
 expiration of the same. 
 
 Every person found traveling and trading within this 
 state, contrary to the provisions of the statute, or con- 
 trary to the terms of this license shall, for each offense, 
 
THE constable's guide. 107 
 
 forfeit the sum of twenty-five dollars to the use of the 
 poor of the town in which the offense shall be committed. 
 And every person so trading, who shall refuse to produce 
 a license as a hawker or peddler to any ofiieer or citizen 
 who shall demand the same shall, for each offense, forfeit 
 the sum of ten dollars for the use of the poor of the 
 town in which the demand shall be made, and every 
 such offender who, after notice, shall refuse or neglect 
 to pay the above penalty, shall be committed by the 
 justice, before whom the conviction shall be had, to the 
 jail of the county in which the offence shall have been 
 committed for the term of one month. 
 
 Any citizen may apprehend and detain any person 
 who shall be found trading as a hawker or peddler, 
 without license, or contrary to the terms of his license, 
 or who shall refuse to produce a license, in violation of 
 the provisions of the statute ; and may convey the 
 offender before any justice of the peace of the town or 
 county in which he shall be apprehended. 
 
 It is the duty of such justice, if a sufficient license to 
 authorize such trading be not produced to him, and the 
 fact of violation be proved or confessed, to convict the 
 offender of any offense against the statute, as is so proved 
 or confessed ; and to issue his warrant on such conviction, 
 directed to some constable of the county in which the 
 conviction shall be had, commanding such constable to 
 cause the sura of twenty-five dollars, with costs not to 
 exceed five dollars, to be forthwith levied by distress 
 and sale at public vendue of the goods, wares and mer- 
 chandise of the offender. The moneys collected on 
 such warrant, exclusive of the cost, shall be paid by the 
 constable to the justice, and by the justice to the over- 
 
108 THE constable's guide. 
 
 seer of the poor of the town in which the oflfense shall 
 have been committed. All suits or prosecutions for the 
 recovery of any penalty, referred to above, must be 
 brought within sixty days after the commission of the 
 offenses charged. (2 R. S., 4'72-4'74 [blS-Bll.] ) 
 
 7. Bastardy Cases. 
 
 It is the duty of the superintendents and overseers 
 of the poor of the county, or any of them, to take the 
 necessary steps to ascertain the father of any bastards 
 born, or likely to be born, and for that purpose to apply 
 to some justice of the peace of the same county to make 
 inquiry into the fact and circumstances of the case. 
 
 Such justice shall by examination of such woman 
 on oath, and upon such other testimony as may be 
 offered, ascertain the father of such bastard, or of such 
 child likely to be bom a bastard ; and shall thereupon 
 issue his warrant directed to any constable of the county, 
 commanding him forthwith to apprehend such reputed 
 father and bring him before such justice, for the pur- 
 pose of having an adjudication respecting the filiation 
 of such bastard, or of such child likely to be born a 
 bastard. 
 
 If the person charged as such reputed father, shall be 
 or reside in any other county of the state than that 
 in which such warrant issued, the justice issuing the 
 same shall in writing thereon direct the sum in which 
 any bond shall be taken of the person so charged; 
 and it shall be the duty of the constable, or other proper 
 officer having the same, to carry it to some justice of the 
 city or county wherein such person resides or can be 
 found. The justice to whom the same shall be presented, 
 
THE constable's guide. 109 
 
 on proof being made to him of tbe handwriting of the 
 justice who issued such warrant, shall indorse his name 
 thereon, with an authority to arrest such person in the 
 county where the justice so indorsing shall reside ; 
 ■which shall be a sufficient authority to the person bring- 
 ing such warrant, and to all others to whom it was 
 originally directed, to execute the same in the county 
 where it was indorsed. 
 
 Upon the person so charged being apprehended, he 
 shall be carried before the justice who indorsed the said 
 warrant or some other justice of the same county, who 
 may take from such person a bond to the people of this 
 state with good and sufficient sureties in the sum so 
 directed on the said warrant, with condition to indemnify 
 the county, and town or city where the said bastard 
 shall have been born, or where the woman likely to 
 have such bastard shall be, and every other county, 
 town or city ■which may have incurred any expense, or 
 may be put to any expense, for the support of such- 
 child, or of its mother during her confinement and 
 recovery therefrom, against all such expenses and to 
 pay the costs of apprehending such father, and of 
 any order of filiation that may be made ; or such 
 justice may take from the person so charged and 
 apprehended a bond as aforesaid, in the sum directed 
 on the said warrant, with good and sufficient sureties, 
 conditioned that such person will appear at the next 
 court of sessions to be holden in the county where such 
 warrant was originally issued, and not depart the said 
 court without its leave. 
 
 Upon a bond being so entered into, with either of the 
 conditions aforesaid, the justice taking the same shall 
 10 
 
110 THE constable's GUIDE. 
 
 discharge tlie person so apprehended from the arrest, 
 and shall indorse upon the warrant a certificate to that 
 effect. He shall deliver the warrant with the bond so 
 taken by him to the constable who brought such warrant, 
 who shall deliver the same to the justice who granted 
 the same, who shall proceed thereupon in the same 
 manner as if such bond had been taken by him. 
 
 If the person so charged and apprehended shall not 
 execute the bond so required, with one or other of the 
 conditions aforesaid, to the satisfaction of the justice 
 before whom he shall be brought, then the constable or 
 other proper ofiicer having such warrant, shall take the 
 person so apprehended before the justice who originally 
 issued such warrant. 
 
 When the person so charged being brought before 
 the justice who issued the warrant for his apprehension, 
 the justice shall immediately call to his aid any other 
 justice of the same county, and the two justices are to 
 proceed and examine into the matter ; if not prepared 
 to proceed, or the person charged shall require delaj', 
 they may adjourn the examination for any time not 
 exceeding six weeks. ' 
 
 During such examination, and until such person shall 
 be discharged by the justices aforesaid, he shall remain 
 in the custody of the constable who apprehended him, 
 unless a bond shall have been taken for his appearance ; 
 and when committed to any jail, he shall be confined 
 therein without being entitled to the liberties thereof. 
 
 Every constable or other officer, to whom any bond 
 of the putative father of a bastard, or of a child likely 
 to be born a bastard, taken out of the county where the 
 warrant was issued, shall be delivered to the justice as 
 
THE constable's GUIDE. Ill 
 
 tereinbefore specified who shall neglect or refuse to 
 deliver the same to the justice who issued such warrant 
 within fifteen days after the receipt of the same, shall 
 forfeit the sum of twenty-five dollars, to be sued for and 
 recovered by and in the name of any overseer of the 
 poor, or county superintendents, at whose instance the 
 said warrant was issued. 
 
 When the mother refuses to disclose the name of the 
 father of the bastard child, the justice or justices, by 
 warrant under his or their hands directed to any con- 
 stable or sheriff of the county, may commit her to the 
 common jail of the county, there to remain until she 
 shall testify and disclose the name of such father. (2 li- 
 S., 906-920 [642-656.] ) 
 
 The warrant, for the arrest of the putative father, 
 continues in force until it is fully executed ; and if the 
 party escapes, he may be again arrested. The pro- 
 ceedings are quasi criminal in their character, but it is 
 not conceived that the officer holding the warrant acts 
 as upon process for the arrest of the defendant in a 
 civil action. The warrant may be executed in any part 
 of the county, and in the day or night, but not upon 
 Sunday ; and the door of the defendant's dwelling-house 
 cannot be broken open to arrest him in the first instance. 
 But it is otherwise if, after due arrest, he shall have 
 escaped. (Crock, &c., § 1051.) 
 
 The constable should see that the name of the person 
 to be arrested is correct in the warrant, as he would be 
 liable to an action of false imprisonment if there is a 
 misnomer in the warrant. {Scott v. My and White, 4 
 "Wend., 555.) 
 
112 THE constable's GUIDE. 
 
 8. As to disturbers of religious meetings. 
 
 It is the duty of all sheriflfs and their deputies, coro- 
 ners, marshals, constables and other peace oflBcers, who 
 may be present at the meeting of any assembly for reli- 
 gious worship, to apprehend and take before some jus- 
 tice of the peace or other magistrate, any person who 
 shall willfully disturb, interrupt or disquiet any assem- 
 blage of people met for religious worship, by profane 
 discourse, by rude and indecent behavior, or by making 
 a noise either within the place of ^7orship or so near it, 
 as to disturb the order and solemnity of the meeting. 
 And the person so creating the disturbance may be tried 
 and summarily convicted before any justice of the peace 
 of the county, or any mayor, recorder or other magis- 
 trate of a city, and upon such conviction shall forfeit a 
 sum not exceeding twenty-five dollars, for the benefit of 
 the poor of the county. 
 
 All judges, mayors, recorders, and justices of the peace, 
 within their respective jurisdictions, upon their own view 
 of any person creating such disturbance, may order the 
 offender into the custody of any officer above named, or 
 of any official member of the church or society so assem- 
 bled and disturbed, for safe keeping, nntil he shall be let 
 to bail, or a trial for such offense be had. If any per- 
 son convicted of disturbing an assemblage for public 
 worship, shall not immediately pay the penalty incurred, 
 with costs of the conviction, or give security to the satis- 
 faction of the officer, before whom the conviction shall 
 be had, for the payment of the said penalty and costs 
 within twenty days thereafter, he shall be committed by 
 warrant to the common jail of the county until the same 
 
THE constable's GriDE. 113 
 
 be paid, or for such term not exceeding thirty days, as 
 shall be specified in the warrant. 
 
 The person complained of as above specified, may, 
 before the court shall proceed to investigate the merits 
 of the cause, demand of such court that he may be 
 tried by a jury. Upon such demand it shall be the duty 
 of such court to issue a venire to any constable of the 
 county or marshal of the city, where the oflFensc is to 
 be tried, commanding such oflBcer to summon the same 
 number of jurors, and in the same manner as is provided 
 for the summoning of jurors for special sessions. The 
 said court shall proceed to impannel a jury for the trial 
 of said cause, in the same manner, and shall be subject 
 to all the rules and regulations prescribed in the act pro- 
 viding for trials by jury in courts of special sessions. (2 
 E. S., 934, 935 [674, 675.] ) 
 
 9. As to excise. 
 
 It is the duty of every sheriff, under sheriff, deputy 
 sheriff, constable, marshal, policeman, or officer of police, 
 to arrest all persons found actually engaged in selling 
 any strong and spirituous liquors, or wines in quantities 
 less than five gallons at a time, without having a license 
 therefor, or who shall sell any strong or spirituous liquors 
 or wines to be drank in his house or shop, or any out- 
 house, yard or garden appertaining thereto, or shall suf- 
 fer or permit any such liquors or wines sold by him or 
 under his direction or authority to be drant in his house 
 or shop, or in any out-house, yard or garden thereto 
 belonging, without having obtained a license therefor, 
 and forthwith to carry such person before any magis- 
 
 10* 
 
114 THE CONSTABLES GUIDE. 
 
 trate of the same city or town, to be dealt with accord- 
 ing to the provisions of the excise law. 
 
 And it is also the duty of the constable and other offi- 
 cers above named, whenever he shall find any person 
 intoxicated in any public place, to apprehend such per- 
 son and take him before some magistrate of the same 
 city or town ; and if such magistrate shall, after due 
 examination, deem him too much intoxicated to be exam- 
 ined, or to answer on oath correctly, he shall direct said 
 officer to teep him in some jail, lockup or other safe 
 and convenient place, "until he shall become sober, and 
 thereupon forthwith bring him before said magistrate : 
 if found guilty of being intoxicated he is to be fined ten 
 dollars, and costs at the same rate as in special sessions, 
 and imprisonment in the county jail, workhouse or peni- 
 tentiary until paid, not, however, to exceed ten days. 
 
 The person found guilty of selling liquor without a 
 license, contrary to the provisions of the excise law, for- 
 feits fifty dollars for each offense, and, on conviction, 
 unless the fine is paid, the oflfender is to be committed 
 to the county jail until such judgment is paid, or until 
 he be discharged according to law. (2 R. S., 938-948 ; 
 Laws of 1857, ch. 628 ; Laws of 1860, and 1869.) 
 10. Habitual drunkards. 
 
 Whenever the overseers of the poor of any city or 
 town shall discover any person to be an habitual drunk- 
 ard, they may by writing under their hands, designate 
 and describe such drunkard, and forbid every person 
 residing within or near the city or town, from giving or 
 selling, under any pretense, any spirituous liquors to such 
 drunkard. And any person so designated as an habi- 
 tual drunkard, may apply to any justice of the peace of 
 
THE constable's GUIDE. 115 
 
 the city or town, in which the person so designated 
 resides, for process to summon a jury to try and deter- 
 mine such fact of drunkenness. 
 
 On such application, the justice shall immediately give 
 notice thereof in writing, to the overseers of the poor, 
 specifying the time and place where the parties shall 
 meet for the trial of such fact, and shall issue a venire to 
 any constable to summon a jury of twelve persons, com- 
 petent to serve on juries, to appear at the said time and 
 place for the purpose of trying the said fact. 
 
 Such jury shall be summoned, returned, and six of 
 them shall be ballotted for by such justice, and shall be 
 sworn well and truly to try the fact of the alleged drunk- 
 enness, in the same manner as for the trial of issues in suit 
 brought before a justice of the peace, and witnesses 
 shall be summoned, and their attendance and testimony 
 enforced, and they shall be sworn and examined before 
 the said jury in like manner. (2 R. S., 901 [637.] ) 
 
 11. As to pawned property. 
 
 Whenever any person shall make oath before any 
 justice of the peace, police justice or assistant justice, 
 that any property belonging to him has been embez- 
 zled or taken without his consent, and that he has rea- 
 son to believe and suspect and does suspect that such 
 property has been pledged with any pawnbroker, such 
 justice, if satisfied of the correctness of such suspicions, 
 shall issue his warrant, directed to any constable of the 
 city or place, commanding him to search for the pro- 
 perty so alleged to have been embezzled or taken, and 
 ■to seize and bring the same before such justice. 
 
 The constable, to whom any such warrant shall be 
 
116 THE constable's GUIDE. 
 
 directed and delivered, shall have the same power to 
 execute the same, and shall proceed in the same manner 
 as in the case of a search warrant upon a charge of lar- 
 ceny. And when he has seized the property he is to 
 bring it before the officer who issued his warrant to he 
 disposed of according to law. (2 K. S., 980 [711.]) 
 
CHAPTER V. 
 
 POWERS AND DUTIES IN MISCELLANEOUS MATTERS. 
 
 1. Sale of property under a chattel mortgage. 
 
 A chattel mortgage is a conditional bill of sale, sub- 
 ject to a defeasance, or prevention of the consummation 
 of a perfect title on the performance of certain condi- 
 tions to be performed by the mortgagor. Until there is 
 a default in the conditions of the mortgage, the title to 
 the property, subject however to the lien, remains in the 
 mortgagor. Whenever default is made in the condi- 
 tions to be performed by the mortgagor, the title to the 
 property vests in the mortgagee according to the condi- 
 tions of the mortgage. The more common conditions 
 of forfeiture in the mortgage authorize the mortgagee to 
 take possession of the goods and chattels mentioned in 
 the mortgage, and take and carry away the said goods 
 and chattels, and sell and dispose of the same for the 
 best price he can obtain, and out of the money to retain 
 and pay the sum mentioned in the mortgage with the 
 interest and all expenses thereon, and render the over- 
 plus, if any, unto the mortgagor or his executors, admin- 
 istrators or assigns. 
 
 Under a mortgage containing the conditions last 
 above specified, whenever the mortgagor has failed to 
 perform the conditions, a constable, as agent for the 
 mortgagee, may take possession of the property and 
 expose it for sale in accordance with the conditions 
 
118 THE constable's GUIDE. 
 
 specified in the mortgage if it contain any. If the 
 mortgage does not specify in what manner, or on what 
 length of notice the property is to be sold, then the 
 constable should sell it in such a manner at public sale 
 as will be of the best advantage both to the mortgagor 
 and mortgagee. 
 
 In most cases it will be advisable for the constable to 
 give a similar notice and for the same length of time as 
 for the sale of goods of chattels under an execution, the 
 notice should describe the goods and chattels taken, be 
 signed by the constable, and put up at three public 
 places in the city or town, where such goods and chat- 
 tels shall be sold, and be put up at least five days before 
 the time appointed for the sale. 
 
 The sale should be conducted in the same manner as 
 a sale by a constable under an execution. 
 
 As soon as property enough has been sold to pay the 
 amount specified in the mortgage with interest and 
 costs, the conditions in the mortgage are satisfied, and 
 the constable can proceed no further with the sale, and 
 if he proceeds and sells more than sufficient to satisfy 
 the mortgage he will be liable to an action for a con- 
 version of the property. (^Charter v. Stevens, 3 Denio, 
 33.) 
 
 2. In execution of search warrants for books, dbc, he- 
 longing to officers on the canals. 
 
 It is the duty of every agent, toll-collector, loct- 
 keeper or superintendent, employed on any canal, and 
 occupying any house, office, building or land, belonging 
 thereto, who shall be discharged from his employment ; 
 and of the wife and family, of every such person who 
 
THE constable's GUIDE. 119 
 
 shall die in such employment to deliver up the posses- 
 sion of the premises so occupied, and of all books, papers, 
 matters or things belonging to the canals, acquired by 
 virtue of his oiEce, within seven days after a notice shall 
 have been served for that purpose, by the acting canal 
 commissioner. 
 
 In case of a refusal or neglect to make such delivery, 
 in either of the above cases, it shall be the duty of any 
 justice of the peace of the county, where such premises 
 shall be situate, upon application, to issue his warrant 
 under his hand and seal, ordering any constable or 
 other peace officer, with such assistance as may be 
 necessary, to enter upon the premises so occupied in the 
 daytime, and remove therefrom all persons found in 
 possession thereof, and to take into his custody all books, 
 papers, matters and things there found belonging to the 
 canals, and to deliver the same to the acting canal com- 
 missioner, or his authorized agent ; and the oflBcer to 
 whom such warrant shall be delivered, shall execute the 
 same according to its purport. (1 R. S., 638 [230.] ) 
 
 3. In executing search warrants for public books and 
 papers. 
 
 If any person who has been removed from office, or 
 whose term of office shall have expired, shall refuse or 
 neglect to give over to his successor all books and papers 
 in his custody as such officer, or in any way appertain- 
 ing to his office, the successor may make complaint 
 thereof to any justice of the supreme court, or the 
 county judge, that such books and papers have been 
 withheld, and the judge may thereupon issue an order 
 directing the persons so withholding to show cause at a 
 
120 THE constable's GUIDE. 
 
 time and place appointed, why he should not be com- 
 pelled to deliver the same. On proof of due service 
 of the order, if the person neglect to appear, or fail to 
 show cause why he should not deliver up the books and 
 papers, the ofScer shall issue his warrant directed to any 
 sheriff or constable, commanding them in the daytime 
 to search such places as shall be designated in such 
 warrant for such books and papers as belonged to the 
 officer so removed, or whose term of office expired, in 
 his official capacity, and which appertain to such office, 
 and seize and bring them before the officer issuing such 
 warrant. If the judge or justice find that the successor 
 in office is entitled to the books and papers he will order 
 them to be delivered to him. 
 
 So, too, where a successor has been appointed on the 
 death of a person holding any office, and any books 
 and papers belonging to said office have come to the 
 hands of any person who refuses to deliver them to the 
 regularly appointed successor, the same proceedings as 
 above mentioned may be taken to acquire possession 
 of said books and papers. (1 R. S., 41 Y [125.] ) 
 4. Serving papers for supervisors. 
 
 Whenever the board of supervisors of any county shall 
 deem it necessary or important to examine any person 
 as a witness, upon any subject or matter within the juris- 
 diction of such-board, or to examine any officer of the 
 county, in relation to the discharge of his official duties, 
 or to the receipt or disbursement of moneys, or concern- 
 ing the possession or disposition by him of any property, 
 belonging^ to the county ; or to use, inspect or examine 
 any book, account, voucher or document in the posses- 
 sion of such officer or other person, or under his control, 
 
THE constable's GUIDE. 121 
 
 relating to tlie affairs or interests of such county, tha 
 cliairman or president of such board, shall issue a sub- 
 poena in proper form, commanding such person or offi- 
 cer to appear before such board, at a time and place 
 therein specified, to be examined as a witness, and such 
 subpoena may contain a clause requiring such person or 
 officer to produce on such examination all books, papers 
 and documents in his possession, or under his control, 
 relating to the affairs or interests of the county. 
 
 It shall be the duty of the sheriff, or any deputy sheriff 
 or constable of the county, to whom the subpcBna may 
 be delivered, to serve the same by reading it to the per- 
 son named therein, and at the same time delivering him 
 a copy thereof; and his official return thereon, of the 
 time and place of such service, shall h& prima facie evi- 
 dence thereof. 
 
 If the person or ofiicer so served refuse to appear, 
 then any judge of the supreme, superior or county court, 
 on application, will issue an attachment against such 
 delinquent person; which attachment must be served 
 by the sheriff of the county. (1 K. S., 853; Laws of 
 1858, ch. 190.) 
 
 5. To collect taxes. 
 
 Whenever it shall satisfactorily appear to the trea- 
 surer of any county in the state, that any state or county 
 tax legally assessed within his county (not assessments 
 on real estate of non-residents), can not be collected by 
 reason of the removal of the person so assessed to any 
 other county of this state, it shall be lawful for the said 
 treasurer to issue a warrant under his hand and seal, and 
 certified by the clerk of the county, that he is such trea- 
 11 
 
122 THE constable's guide. 
 
 surer, to any constable or sheriff of the county where 
 such person resides, to collect the same out of the per- 
 sonal property of such person. 
 
 Any sheriff or constable receiving such warrant, shall 
 execute the same, and make the like returns, and be 
 entitled to the same fees, and subject to the same liabi- 
 lities and penalties for neglect, as upon executions from 
 any court. ( 1 R. S., 921 ; Laws of 1836, ch. 461.) 
 
 6. Process of court marshal. 
 
 Constables, as well as sheriffs, and marshals appointed 
 for the purpose, are required to execute any precept 
 issued by the president of any court martial or court of 
 inquiry, for the purpose of procuring the attendance of 
 witnesses to be sworn and testify, and to preserve order 
 as courts of common law jurisdiction. Such courts have 
 authority, whenever persons, duly subpenaed to appear 
 before said courts, refuse or neglect without just cause 
 to attend as witnesses, on application of the party on 
 whose behalf such subpoenas were issued, and on show- 
 ing that the testimony of such witness is material, to 
 issue an attachment to compel the attendance of such 
 witness, and the witnesses may be compelled to pay the 
 costs of such attachment ; and when the costs are ascer- 
 tained, may issue execution therefor : and which may 
 be collected as other executions are collected when issued 
 from courts of justice. 
 
 Any person or persons who shall be guilty of disor- 
 derly or contemptuous or insolent behavior in, or use 
 any insulting or contemptuous or indecorous language 
 or expression to or before any court martial or court of 
 inquiry, or any member of either of such courts, in open 
 
THE CONSTABLES GUIDE. 123 
 
 court, may be committed to the jail of the county in 
 which such court, shall sit, by warrant under the hand 
 and seal of the president of such court. Such warrant 
 shall be directed to the sheriff or any or either o"f the 
 constables and marshals of any such county, or any offi- 
 cer attending the court, and shall command the officer, 
 to whom it is directed, to take the body of such person 
 and commit him to the jail of the county, there to remain 
 without bail or mainprize, in close confinement, for a time 
 to be limited, not exceeding three days, and until the offi- 
 cer's fees for committing, and the jailor's fees be paid. 
 Fees for constables for serving process for court martial 
 are the same as for serving similar process in justices' 
 courts. (1 R. S., 757, 758 ; Laws of 1854, ch. 398.) 
 
CHAPTER VI. 
 
 DUTIES AS A PEACE OFFICER AND IN CRIMINAL PRO- 
 CEEDINGS. 
 
 The general duty of all constables, as well as of other 
 peace officers, is to keep the peace in their several 
 districts ; and for that purpose they are armed with very 
 large powers of arresting and imprisoning, of breaking 
 open houses, and the like. (Black. Com., book 1, chap. 
 9, §4.) 
 
 A constable is justified, without a warrant, in appre- 
 hending and detaining until they can be carried before 
 a magistrate, all persons found attempting to commit a 
 felony (1 Moody's C. C, 93) ; or doing any act which 
 would manifestly endanger the life of another ; or even 
 in cases of threats of violence. As if a man in a passion 
 threatens the life of another, the constable may arrest 
 him, and bring him before a magistrate to be bound in 
 surety of the peace ; and so in similar instances. (Barb. 
 C. L., 44, 2d ed.) 
 
 It is the duty of constables to do all they can to pre- 
 serve the peace within their respective constablewicks ; 
 and for this purpose, they not only may but ought to 
 apprehend any person, who shall make an affray or 
 assault upon another in their presence, or who shall 
 threaten to kill, beat or hurt another, or shall be ready 
 to break the peace in their presence, and may take such 
 persons before a justice of the peace, in order that they 
 
THE CONSTABLES GUIDE. 125 
 
 may find surety for the peace, and in order the better 
 to enable them to preserve the peace, they have authority 
 to command all other persons to assist them in endeavor- 
 ing to appease such disturbances as take place in their 
 presence. (1 Russ. on Cri., 770.) 
 
 In cases of felony, a peace officer has not only 
 authority to apprehend a felon, while committing the 
 felony, but also upon pursuit, or information at any time 
 afterwards ; and he may even justify apprehending an 
 innocent person, if he have reasonable ground to suspect 
 that he is guilty of a felony, and this, although no felony 
 has been committed. (Id., 771.) But in such cases the 
 suspicion should be very strong, and the evidence of the 
 commission of the ofiense, or of being implicated therein 
 be very clear. 
 
 But whether a constable or other peace officer is 
 warranted in arresting a person upon a charge by 
 another, of a mere breach of the peace, after the affray 
 is ended -without a special warrant from a magistrate, is 
 a point which has occasioned some doubt. If there is 
 a danger of the party escaping he may perhaps appre- 
 hend him at once, but in cases where there is no danger 
 of his escape he should procure a warrant previous to 
 the arrest. {Cook v. JSTethercote, 6 Car. and P., 741; 
 Eos. Cr. Ev., 614.) But if one person threatens to kill 
 another, who complains to the constable, the latter may, 
 in order to avoid the present danger, arrest the party and 
 detain him till he can conveniently bring him before a 
 justice of the peace (2 Hale's P. C, 88), and this power 
 is grounded on the duty of the ofiicer to prevent a pro- 
 bable felony. (1 East's C. L., 306.) 
 
 If there be an affray in the house, where the doors 
 11* 
 
126 THE constable's guide. 
 
 are shut, whereby there is likely to be manslaughter or 
 bloodshed committed, the constable having notice there- 
 of, and demanding entrance, if they refuse him entrance 
 and continue the aflfray, the constable may break open 
 the doors to keep the peace and prevent the danger. 
 Further, if there be disorderly drinking or noise in a 
 house at an unseasonable time of the night, especially 
 in inns, taverns, or alehouses, the constable demanding 
 entrance, and being refused, may break open the doors 
 to see and suppress the disorder. (1 Hale's P. C, 95.) 
 So if affrayers fly to a house and close the doors, and 
 the constable immediately follow them, he may break 
 open the doors, if they resist his entering. (Hawk. P. 
 C, b. 1, chap. 63, § 16.) But if he wait until the affray 
 is ended he cannot pursue and take them without 
 warrant. (Phillips v. Trull, 11 John., 486.) 
 
 Any person who sees others engaged in fighting may 
 lawfully apprehend them, and stay them till the heat be 
 over, and then deliver them to a constable, who may 
 carry them before a justice of the peace, in order to their 
 finding sureties for the peace. (Barb. Cr. L., 45.) 
 
 When the assault is committed in the presence of the 
 ofiicer, he may arrest not only the individual who com- 
 menced the assault, but his companion, although he may 
 have taken no part in the affray, but who does not with- 
 draw himself or exert himself in some way to stop the 
 disturbance. (Lewis v. Arnold, 4 C. & P., 354.) And he 
 may arrest a person who merely stands in the way so as 
 to hinder him from interfering to keep the peace. (Levy 
 V. Edwards, 1 C. & P., 40.) 
 
 If a person, without committing any assault, make 
 such a noise or disturbance in a public house as would 
 
THE constable's GUIDE. 12T 
 
 create an alarm, and disquiet tlie neigliborhood, the con- 
 stable may appreliend liim. (Howell v. Jachson, 6 C. & 
 P., 723.) Where persons assemble with a mob before a 
 shop door and interrupt the owner's business, the con- 
 stable may arrest such of them as create the disturbance. 
 [Ingle v. Bell, 1 Mees. & Wels., 616.) 
 
 Whenever a riot or an affray commences, the consta- 
 ble should at once command the peace, and that the 
 rioters desist, and if they do not, he should at once pro- 
 ceed to take the rioters into custody, and, if necessary, 
 he should command the bystanders to assist him ; and 
 if they refuse to do so, they become liable to arrest, and 
 if he be not able to take thera into his custody at the 
 time, he may, on complaint afterward before a magis- 
 trate, obtain a warrant for their arrest. If the consta- 
 ble is in the immediate neighborhood for which he was 
 elected, and it be in the daytime, it is not absolutely 
 necessary for him to give notice that he is a peace offi- 
 cer, and especially not if he have with him any insignia 
 of his office ; but if it be in the night, or he be at a dis- 
 tance from his usual place of residence, he should give 
 notice that he is an officer, and what he intends to do. 
 (East's C. L., 314, 315.) 
 
 When the constable has arrested his prisoner he 
 should immediately take him before some justice of the 
 peace in order that he may be bailed or committed, as 
 the case shall require ; but till bailed or committed or 
 discharged, the prisoner must remain under the charge 
 of the constable who took him. Till the constable can 
 conveniently convey the party arrested to a justice of the 
 peace, or the common jail, he may detain him in any 
 convenient lockup for the night : and if the person be 
 
128 THE constable's guide. 
 
 sict, the constable may keep him for a day and a night 
 at least, and in some cases of necessity, for a longer time, 
 till he can with safety and convenience convey him to a 
 justice of the peace. (2 Hale's P. C, 95.) But when a 
 constable detained a party three days in order that a 
 person whose goods had been stolen might have an 
 opportunity of collecting his witnesses and bringing them 
 to prove the felony, it was held he was not justified in 
 so doing. {Wright v. Court, 4 B. & C, 596.) 
 
 When an arrest has been made without a warrant, the 
 constable may, in some cases, take the party's word for 
 his appearance before a magistrate : and this is fre- 
 quently done where the charge is for an assault of a 
 trifling nature, and the defendant is of good repute and 
 there is no probability of his absconding. {Hardy v. 
 Murphy, 1 Esp., 295.) 
 
 In general when an affray takes place in the presence 
 of a constable, he may either keep the parties in cus- 
 tody till the affray is over or he may carry them imme- 
 diately before a magistrate. {Churchill v. Mathews, 2 
 Selw. N. P., 911.) 
 
 In most cases of riots, assaults and affrays, the officer 
 has to act on the instant, and without being able to pro 
 tect himself, by a warrant for the arrest of the rioters. 
 But in air those cases that arise where large and improper 
 gatherings are made, for the purpose either of riot or to 
 witness races, bull-bating, prize-fighting, or cock-fighting, 
 the constable should apply to a magistrate for a warrant 
 against the leaders in order that they may be held to bail 
 to keep the peace, and thus an unlawful assembly will be 
 prevented. Says Justice Burrough, " My advice to magis- 
 trates and constables is, in cases when they have informa- 
 
THE constable's GUIDE. 129 
 
 tion of a fight, to secure the combatants beforehand, and 
 take them to a magistrate, who ought to compel them 
 to enter into securities to keep the peace till the next 
 assizes or sessions ; and if they will not enter into such 
 security, to commit them to prison." [Hex v. BilUngham, 
 2 C. & P., 234.) 
 
 A prisoner who may be confined in a state prison, 
 county jail or penitentiary, upon conviction for a crimi- 
 nal ofi^ense, and escaping therefrom, may be retaken at 
 any time without a warrant, and imprisoned again until 
 tried for such escape, or. until he be discharged on 
 failure to prosecute therefor. (3 R. S., 965 f685].) 
 
 A magistrate may cause an officer by word only, to 
 apprehend a person committing a felony or breach of 
 the peace in his presence. (4 Black. Com., 292.) And in 
 suppressing riots the magistrate may order the offender 
 into the custody of an officer for safe keeping until he 
 can be tried. (Barb. Cr. L., 490.) 
 
 The more usual arrests made by a constable are made 
 by virtue of a warrant. 
 
 A warrant (criminal) is a writ issued by a justice of 
 the peace or other authorized officer, directed to a con- 
 stable or other proper person, requiring him to arrest a 
 person therein named, charged with committing some 
 offense, and to bring him before that or some other jus- 
 tice of the peace. It should regularly be made under 
 the hand of the justice and dated. No warrant ought to 
 be issued except npon the oath or affirmation of a wit- 
 ness charging the defendant with the offense. (Bouv. 
 Law Diet., title Warrant.) 
 
 The several officers in this state authorized to issue 
 criminal warrants are justices of the supreme court ; 
 
130 THE constable's GUIDE. 
 
 judges of the superior court of the city and county 
 of New York ; judges of county courts, mayors, recor- 
 ders and aldermen of cities ; the justices of the justices' 
 court, and police justices in the city of New York, and 
 justices of the peace and police justices appointed for 
 any city or elected in any town (3 E. S., 993 [706] ) ; 
 and coroners have power to issue a warrant to appre- 
 hend a party, whenever he shall hold an inquest, and the 
 jury shall find that any murder, manslaughter or assault 
 has been committed, and the person charged with such 
 ofifense is not in custody. (3 E. S., 1037 [743.]) 
 
 Warrants issued by either of the officers above enu- 
 merated may be executed in any part of this state, 
 except such as are issued by any justice in New York, 
 or by any alderman or justice of the peace ; warrants 
 issued by any such assistant justice, alderman or justice 
 shall not be executed out of the county within which 
 they are officers unless indorsed by a justice of the 
 peace or other magistrate iabove named, within the 
 county where such offender shall be. When the person 
 against whom any warrant, granted by any alderman or 
 justice, shall be issued, shall escape, or be in any other 
 county, out of the jurisdiction of such alderman or justice, 
 it shall be the duty of any justice of the peace or other 
 magistrate above named, within the county where such 
 offender shall be, or shall be suspected to be, upon proof 
 of the handwriting issuing the warrant, to indorse his 
 name on the same ; and thereupon the person bringing 
 the warrant, or any other officer to whom it may have 
 been directed, may arrest the offender in the county 
 where the warrant was indorsed. (3 E. S., 993 [707.]) 
 
 The constable should see that the warrant is regular 
 
THE constable's GUIDE. 131 
 
 on its face. It must be directed to the constable or to 
 any constable of tbe county, for if directed to the sheriff 
 the constable cannot execute it, and it must show that 
 an offense has been committed ; if known, the name of 
 the person should be correctly stated, because the officer 
 cannot justify an arrest under a wrong name, unless the 
 party was known by one name as well as the other 
 {Gumsey v. Lovell, 9 Wend., 320) ; and the correctness 
 must extend even to the Christian name ; as where the 
 name Emeline was written instead of Evelina the officer 
 ■was not protected [Scott v. Ely, 4 Wend., 555) : but 
 if the party is unknown the warrant should contain the 
 best description the nature of the case will admit (Barb. 
 Cr. L., 525) ; the offense should be specifically charged 
 that the prisoner can at once determine its nature (see 
 People V. McLeod, 1 Hill, 377); if it is for feloniously 
 taking property, the value thereof should be stated 
 {Howell V. The People, 2 Hill, 281), and if not it will 
 be deemed to be petit larceny, and the prisoner may be 
 admitted to bail for that offense {Payne v. Barnes, 5 
 Barb., 465) ; no portion of the warrant should be left 
 blank to be filled by the constable, and the official title of 
 the magistrate should be annexed to his signature to show 
 that he had authority, and it may be signed by him with 
 or without seal. (3 E. S., 993 [700.] ) It should not be re- 
 turnable at a particular time ; for that might detain the 
 party in custody, and the law has fixed the time for its 
 return immediately, for if it should order the prisoner to 
 be committed until the following day, even thoagh it 
 were issued late Saturday it would be erroneous, and 
 the officer obeying it would be guilty of false imprison- 
 ment. {Pratt V. Hill, 16 Barb., 303.) 
 
132 THE constable's guide. 
 
 The ofBcer looks to the ■warrant alone for his protec- 
 tion, and if it is issued by an ofBcer or court having 
 jurisdiction of the subject matter he is protected [Parker 
 V. Walrod, 16 "Wend., 514; Wehher v. Gay, 12 Wend., 
 485), and he will be protected if the warrant even be 
 defective in some of its minor requirements which may 
 be amended. {Dominick v. Backer, 3 Barb., 17.) 
 
 The constable, on receipt of the warrant, should pro- 
 ceed with secresy to find out and arrest the party ; and 
 if he refuse or neglect to execute the warrant, he will 
 be punishable for his disobedience or neglect. (Cro. 
 Eliz., 654; Hale, 581.) 
 
 To constitute an arrest, the party against whom the 
 process is awarded, must be either actually touched by 
 the officer, or confined in a room, or must submit him- 
 . self by words or actions to be in custody. (Genner v. 
 Sparkes, 1 Salk., 79.) And when the officer employs 
 others to assist him he must be so near as to be acting 
 in the arrest in order to render it legal ; although it is 
 not necessary that ho should be actually in sight at the 
 instant of the arrest. [Blatch v. Archer, Cowp., 65 ; 
 Coyles V. Surlin, 10 John., 85.) 
 
 The arrest may be made either in the day or night 
 time. And no persons are exempt as in civil actions. 
 (Crocker, 37.) And though arrests in general are pro- 
 hibited on a Sunday, cases of treason, felony and breach 
 of the peace are excepted, and as no time is usually 
 prescribed in the warrant, it continues in force until 
 fully executed, though it were seven years after its date, 
 during the lifetime of the magistrate by whom it was 
 granted. (Allen, 118.) 
 
 A regular officer is not bound to exhibit his authority 
 
THE constable's GUIDE. 133 
 
 when he arrests a defendant, or apprehends an offender ; 
 though a special deputy is {Arnold v. iSteeves, 10 
 Wend., 514) ; but if the party, on -whom the process is 
 served, demand a copy thereof the oflScer must furnish 
 it without any compensation (3 R. S., 739 [440.] ) 
 except in those civil cases where a specific fee is allowed 
 by law. 
 
 After a peaceable arrest, however, if the party requires 
 it, the officer ought to show the warrant, to tell at whose 
 suit, for what cause, by what process, and in what court 
 returnable the arrest is made ; otherwise it will be 
 wrongful. (9 Co., 69 a.) 
 
 If the constable has a warrant he may break open 
 outer doors, to arrest an offender, for treason, felony, 
 suspicion of felony, or actual breach of the peace, or to 
 search for stolen goods, if otherwise he cannot be taken 
 (1 Hale's P. C, 583), but he should first announce his 
 business and demand that the door be open. (2 Hale's 
 P. C, 117.) And the warrant will be a complete jus- 
 tification to the officer acting bona fide under it, although 
 the person accused should be innocent. (4 Black. Com., 
 291 ; Cro. Eliz., 130.) And if in the attempt to execute 
 a lawful warrant by breaking into the house of a felon", 
 after previous demand of an officer, for admittance, the 
 officer be killed by the party resisting, it will be murder 
 in all concerned ; and if, on the other hand, he unavoid- 
 ably kill any of the parties opposing him the homicide 
 will be justifiable because in furtherance of justice. 
 (1 Hale's P. C, 494.) If the offender has been arreste<^ 
 and breaks away from the officer and shut himself up 
 in his own house, the door may be broken open by the 
 12 
 
134 THE constable's guide. 
 
 officer -without mating a demand for admittance. {Allen 
 V. Martin, 10 Wend., 300.) 
 
 But in all the above cases the warrant must be in all 
 material respects valid and sufficient or it will not be a 
 protection to the officer. (Allen, 124, 125.) 
 
 The house of a third person, if the oflfender fly to it 
 for refuge, is not privileged, but may be broken open 
 after the usual demand (5 Co., 91) ; but then he must 
 at his peril see that the felon be there, for if the felon 
 be not there, he is a trespasser to the stranger whose 
 house it is. (2 Hale's P. C, 111.) 
 
 After a party has been once actually arrested and 
 escapes from custody, any door may be broken without 
 demand of admittance for the purpose of retaking him. 
 (Allen, 126.) So, too, after indictment found. (Crocker, 
 38.) 
 
 The degree of force which the officer is authorized to 
 use, in arrest and to prevent flight or escape, depends 
 upon the degree of the offense for which the arrest is 
 made. When the offender is apprehended for a felony 
 or to prevent a commission of a felony, or for a danger- 
 ous wound given, and he attempt to break away and 
 escape, or to avoid an arrest, and happen to be wounded 
 or killed by the officer in ende|.voring to prevent his 
 escape, when without such force he could not be taken, 
 the officer will not be responsible. (East's C. L., 298.) 
 But if he may be taken without such severity, the offi- 
 cer would be liable. (1 Hale's P. C, 489.) But in cases 
 of affray, assault or other misdemeanor, and the party 
 flies to avoid arrest, but does not with force resist the 
 officer, if the officer kill him in the attempt to appre- 
 hend him, the law will not, in general, protect him. 
 
THE constable's guide. 135 
 
 though, under certain circumstances the offense may be 
 manslaughter, if it appears that death was not intended. 
 (1 East's C. L., 302 ; Barb. Cr. L., 539.) 
 
 When the officer has made his arrest he is to bring 
 the party to the jail or the justice, according to the im- 
 port of his warrant ; and if he be guilty of unnecessary 
 delay, it is a breach of duty. (2 Hale's P. C, 119.) The 
 usual direction in the warrant is that the offender be 
 brought before the justice issuing the same. (3 E. S., 
 994 ['707.] ) If the time be unseasonable, as in or near 
 the night, whereby he cannot attend the justice, or the 
 party be ill and unable at present to be brought, or if 
 there be danger of a rescue, he may secure him in soiie 
 proper place until it may be reasonable to bring him. 
 (2 Hale's P.O., 119.) 
 
 If a constable, after he hath arrested the party by 
 force of any warrant of a justice of the peace, suffer him 
 to go at large, upon his promise to come again at such 
 a time and find sureties, he cannot afterwards arrest him 
 by force of the same warrant. However, if the party 
 return and put himself again under the custody of the 
 constable, the constable may lawfully detain him. (2 
 Hawk. P. C, ch. 13, orig. sec. 9.) Bat if he escapes 
 without the concurrence of the officer, he may be reta- 
 ken as often as he ffies, and upon fresh suit, although he 
 reaches another county. (Allen, 127.) 
 
 If the magistrate, on the return of the officer with the 
 offender, be absent, or his office be vacant, the officer is 
 to deliver the offender with the warrant, with a proper 
 return indorsed thereon signed by the officer making 
 the arrest, to the nearest magistrate. (3 R. S., 995 [707.] ) 
 The return of the constable must show distinctly that 
 
136 THE constable's GtrlDB. 
 
 the magistrate who issued the warrant is absent or his 
 office is vacant. {People v. Fuller, \1 Weud., 211.) 
 
 When the person is arrested in another coanty from 
 that in which the warrant issued, and the offense 
 charged in the warrant be not punishable with death or 
 by imprisonment in the state prison, he may demand of 
 the officer that he be taken before a justice of the county 
 where he is arrested, and he may there give a recogni- 
 zance with sufficient sureties, for his appearance at the 
 next court, having cognizance of the offense to be held 
 in the county where the offense shall be alleged to have 
 been committed. If the magistrate admit to bail, he shall 
 indorse that fact on the warrant, and deliver it, with the 
 recognizance to the constable, who shall, without unne- 
 cessary delay, deliver them to the clerk of the court in 
 which such prisoner shall be recognized to appear. But if 
 the magistrate refuse to let to bail, then the officer or per- 
 son having him in charge shall take him before a magis- 
 trate of the county in which the warrant was originally 
 issued. If the offense charged in the warrant be pun- 
 ishable with death or with imprisonment in the state 
 prison, then the party so arrested must be taken before 
 a magistrate of the county in. which the warrant was 
 issued. (3 R. S., 994 [707.] ) 
 
 When the prisoner is brought before the officer he is 
 still considered to be in the custody of the officer until 
 he is either discharged, bailed, or committed to prison. 
 (2 Hale's P.O., 120.) 
 
 The magistrate, on the hearing before him, may dis- 
 charge, hold to bail or commit the prisoner. If he is 
 discharged for want of evidence of guilt, or on giving a 
 recognizance to appear before some court having juris- 
 
THE constable's GUIDE. 137 
 
 diction of the offense-charged, the force of the warrant 
 Trill be spent, and he cannot be retaken on the same 
 ■warrant, although he should give bail to appear at a 
 time and place when no court is to be held. {Doyle v. 
 Russell, 30 Barb., 300.) 
 
 Where the prisoner is committed to answer the charge, 
 if he desires and is ready to give bail, the officer must 
 take him before some proper judge or officer authorized 
 to take bail in the case, if the committing magistrate is 
 not authorized to do so ; and on his giving bail in the 
 amount and with the sureties satisfactory to the judge or 
 officer, he is to be released, and the duties of the officer 
 having him in charge are at an end. If he does not 
 give bail, the officer must forthwith deliver him to the 
 custody of the jailor, at the jail of the county. (Crocker, 
 44.) 
 
 The constable is not obliged to return the warrant 
 itself to the justice, but may keep it for his own justifi- 
 cation in case he should be questioned for what he had 
 done, and need only return to the justice what he has 
 done in pursuance of its commands. {Regina v.. Wyatt,_ 
 2 Ld. Ray., 1196 ; 1 Chit. Cr. L., 60.) 
 
 Any person, charged with an offense of which the 
 special sessions has jurisdiction, when brought before the 
 magistrate for examination, may demand that he be 
 forthwith tried by the special sessions. In case the 
 offender does not demand a trial, he is to be committed 
 either to the jail or to the custody of the officer for 
 twenty-four hours, to allow him time to obtain bail for 
 his appearance at the next term of a court having juris- 
 diction of the offense. But if *he does not make such 
 request, and does not find bail within twenty-four hours 
 12* 
 
138 THE CONSTABI-ES GUIDE. 
 
 from the time of his commitment, lie is to lie tried by a 
 com-t of special sessions. (3 R. S., 1002, 1003 [712].) 
 
 Special sessions were formerly held by three magis- 
 trates, either three justices of the peace, or by two jus- 
 tices and a county judge : but now the special sessions 
 may be held by a single justice, with or without a jury, 
 at the election of the prisoner. (3 R. S., 369 [223.] ) 
 
 If the prisoner does not offer bail within the twenty- 
 four hours allowed him for that purpose, the justice 
 issues his order that the prisoner be brought before liim. 
 If the defendant does not plead guilty he may be tried 
 by the justice unless he demands a jury. If he demand 
 a jury the court issues a venire directed to any consta- 
 ble of the county or marshal of the city where the offense 
 is to be tried, commanding him to summon twelve good 
 and lawful men, qualified to serve as jurors, and not 
 exempt from such service by law, and who shall be in 
 nowise of kin either to the complainant or the defend- 
 ant, to be and appear before such court, at a time not 
 more than three days from the date of the venire, and 
 at a place to be named therein, to make a jury for the 
 trial of such offense. 
 
 The officer, to whom such venire shall be delivered, 
 shall execute the same fairly and impartially, and shall 
 not summon any person whom he shall suspect to be 
 biased or prejudiced for or against the defendant. He 
 shall summon the jurors personally, and shall make a list 
 of the persons summoned, which he shall certify and 
 annex to the venire, and return with it to the court. 
 From this numb* six persons are to be drawn to form a 
 jury ; and if a sufficient number do not appear, the con- 
 stable may be directed to summon others to supply the 
 
THE constable's GUIDE. 139 
 
 deficiency. If the officer, to -whom the venire shall have 
 been delivered, shall not return the same, as thereby 
 required, the court shall issue a new venire, upon which 
 the same proceeding shall be had, as is provided in res- 
 pect to the first venire. (3 R. S., 1003, 1004 [713.]) 
 
 Constables may serve subpoenas for the courts of 
 special sessions, in the same manner as subpoenas are 
 served in justices' courts except that the witnesses are 
 not entitled to fees for their attendance (3 R. S., 1011 
 ['HY]), and for their non-attendance they may be 
 attached. When the evidence and allegations have been 
 submitted to the jury, they are to be kept together and 
 attended by a constable in the same manner as on trials 
 in justices' courts. (Id., 1004 [713.]) If the defendant 
 is found guilty, he is to be punished by fine or imprison- 
 ment, or both, and the warrant is to be executed by the 
 oflacer to whom it is directed and delivered. If the 
 defendant be fined, and neglect or refuse to pay the fine 
 he is to be committed to the county jail. (3 R. S.,.1010 ; 
 Laws of 1830, ch. 42.) 
 
 The warrantof commitment should be directed to the 
 officer, or to a class of officers, by whom it is executed or 
 it will be void. {Russell v. Hubbard, 6 Barb., 654.) 
 
 If the fine is paid before commitment, it is to be 
 received by the magistrate who holds the court ; if paid 
 after commitment it is to be received by the sheriff, and 
 by either officer to be paid to the county treasurer. (3 
 R. S., 1010 [716.J ) 
 
 A search warrant is a warrant requiring the officer, to 
 whom it is addressed, to search a house or other place 
 therein specified, for property alleged to have been 
 stolen ; and if the same shall be found upon such search, 
 
140 THE constable's GUIDE. 
 
 to bring tlie goods so found before the officer granting 
 the same, or before some other lawfully authorized offi- 
 cer (Bouv. L. D.) : and it may include within it an order 
 for the arrest of the person in whose custody the goods 
 are found. (Bell v. Clapp et al., 10 Johns., 203.) It 
 may be issued by the same officers who are authorized 
 to issue warrants for the apprehension of offenders [ante, 
 pp. 129, 130). 
 
 The warrant is to be directed to the sheriff of the 
 county, or any constable or marshal of the town or city, 
 and shall command him to search the place, where snch 
 property is suspected to be concealed, in the daytime 
 (which place shall be particularly designated and the 
 property shall be particularly described in such warrant), 
 and to bring such property before the magistrate issuing . 
 such warrant. If there be positive proof that any pro- 
 perty stolen or embezzled is concealed in any particular 
 house or place, the warrant may authorize the searching 
 of such house or place in the night time. When pro- 
 perty alleged to have been stolen shall come into the, 
 hands of a constable, he shall hold the same subject to 
 the order of a magistrate authorized to direct the dispo- 
 sition thereof. The magistrate who shall take the exam- 
 ination of the person accused of stealing such property, 
 may order the same to be delivered to such owner on his 
 paying the reasonable and necessary expenses incurred 
 iu the preservation of such property. And if the pro- 
 perty stolen shall not have been delivered to the owner 
 thereof, the court, before which a conviction shall be had 
 for the stealing of such property, may, upon proof of the 
 ownership of any person, order the same to be restored. 
 If it is not claimed before the expiration of six months 
 
THE constable's GUIDE. 141 
 
 from the time any person shall have been convicted of 
 stealing such property, the property is to be delivered 
 to the county superintendents of the poor, on his or their 
 paying the reasonable and necessary expenses incurred in 
 the preservation thereof. (3 K. S., 1041 [747.] ) 
 
 The warrant must be entirely filled up before it is 
 issued to the constable, and shall have no blank either 
 in the date or otherwise at the time it is delivered to the 
 officer. It must be signed by the justice and may be 
 under seal or without seal. (3 R. S., 454 [267.]) 
 
 A general warrant to search all suspected places for 
 stolen goods would be illegal, besides it would be ex- 
 tremely dangerous to leave it to the discretion of a 
 common officer to arrest what persons, or search what 
 houses he think fit. (Chit. Cr. L., 66.) 
 
 The constable should follow strictly the directions of 
 the warrant, and he will be protected by it in seizing 
 the particular property therein specified. If the outer 
 door is shut he may, after a demand and refusal to open 
 the outer door, break it, or any other door in the house 
 [Bell V. Clapp et al., 10 Johns., 263), and so he may boxes 
 after the keys have been demanded, even though the 
 goods be not found. (Chit. Cr. L., 66 ; Beatty v. Perkins, 
 6 Wend., 382.) If he seizes goods which correspond with, 
 and come within the description of those which he is 
 commanded by the warrant to search for, he is not liable 
 to an action, though the goods so seized by him may 
 not be the same which were lost by the complainant. 
 (Stone V. Dana, 5 Met., 98.) But if he should take 
 other goods not described in the warrant, or which do 
 ' not come within the description in the warrant, he would 
 be a trespasser ( Crozie' v. Candey et al., 6 B. & C, 
 
142 THE constable's guide. 
 
 232) ; yet if they were likely to be needed in substan- 
 tiating the charge of stealing the goods, they may be 
 taken. {S. C, Crocker, § 80.) 
 
 The constables should see that the goods are well 
 taken care of while in their possession, but they are not 
 liable for any injury done to the property after they 
 have brought it to the magistrate's office, [Price v. 
 Messenger, 3 Esp., 98.) 
 
CHAPTER VII. 
 
 CERTAIN PEOHIBITIONS AND PENALTIES PERTAINING TO 
 THE OFFICE OF CONSTABLE. 
 
 The constable who serves either the original or jury 
 process in an action in the justices' court shall not appear 
 and advocate for either party at the trial, but may act 
 as attorney in any other stage or proceeding in the 
 cause. (3 E. S., 433 [233.] ) 
 
 A constable shall not, directly nor indirectly, buy, or 
 be interested in buying, any bond, note or other demand, 
 or cause of action, for the purpose of commencing any 
 suit thereon before a justice, nor shall a constable, 
 either before or after suit brought, lend or advance, or 
 agree to lend or advance, or procure to be lent or 
 advanced, any money or other valuable thing to any 
 person, in consideration of, or as a reward for, or induce- 
 ment to, the placing or having placed in the hands of 
 such constable, any debt, demand, or cause of action 
 whatever for prosecution or collection. 
 
 No constable shall ask or receive any money or 
 valuable thing from a defendant, or any other person, 
 as a consideration, reward, or inducement' for omitting 
 to arrest any defendant, or to carry him before any jus- 
 tice ; or for delaying to take any party to prison ; or for 
 postponing the sale of any property, under any execution; 
 or for omitting or delaying the execution of any duty 
 pertaining to his office. Every constable offending 
 
144 THE constable's guide. 
 
 against either of the above provisions shall be deemed 
 guilty of a misdemeanor, and, on conviction, shall be 
 subject to fine or imprisonment, or both, in the discretion 
 of the court. And every such conviction shall work a 
 forfeiture of the office of the constable so convicted. 
 The defendant in any suit to be brought in any action 
 of debt, covenant, or assumpsit may give notice with 
 his plea, in addition to any other matter of defense, that 
 on the trial of the cause he will insist and prove that 
 the demand on which such action is founded has been 
 bought and sold, or received for prosecution contrary to 
 law, without setting forth any other particulars. 
 
 The defendant, in any such suit may serve a notice 
 on the plaintiff, two days before the trial, requiring him 
 to appear personally on such trial and be examined ; 
 and it shall be the duty of the plaintiff to attend, and 
 he is to be allowed the like fees as are allowed witnesses, 
 but he is not required to attend to give evidence, except 
 from the same county, or the county next adjoining that 
 in which the cause is tried. If the plaintiff in such 
 case do not attend such trial, on proof of due service of 
 the notice, he may be nonsuited in the action. The 
 attorney of the plaintiff may also be examined in regard 
 to such defense. Or if on such trial it shall appear that 
 the cause of action on which such suit is founded has 
 been bought or procured, contrary to the true intent of 
 the provisions of this article, the plaintiff in such action 
 shall be nonsuited. (3 R. S., 455 [268.]) 
 
 The object of the foregoing provisions was to prevent 
 constables from purchasing debts or other things in 
 action in order to obtain costs by prosecuting the same, 
 and is not intended to prevent such purchases for the 
 
THE COSrSTABLES GUIDE. 145 
 
 honest purpose of protecting some other important 
 right of the assignee. {^Baldwin v. Latson, 2 Barb. Ch., 
 306.) The complaint in actions referred to above should 
 set up that the plaintiff was actually constable at the 
 time of his purchase of the demand [Warren agt. 
 Helmer, 8 How., 420) : and the intent must be proved 
 otherwise than by the mere fact of the purchase while 
 he is such officer. (Hall v. Bartlett, 9 Barb., 29V.) 
 
 No constable shall, directly or indirectly, purchase 
 any goods or chattels at any sale made by him upon 
 execution ; but every such purchase shall be absolutely 
 void. (3 K. S., 448 [252.] ) 
 
 If a constable neglect to return an execution within 
 five days after the return day thereof, the party in whose 
 favor the same was issued may maintain an action of 
 debt against such constable, and shall recover therein 
 the amount of the execution, with interest from the 
 time of the rendition of the judgment upon which the 
 same was issued. (3 R. S., 449 [253.] ) And it is not 
 necessary to show that he has collected any money, to 
 sustain the action {Sloan et al. v. Case, 10 Wend., 370), 
 and his sureties will be liable equally with him if he has 
 collected money, even if the obligation signed by them 
 was not perfect in all its parts. {Skellinger v. Tendes, 
 12 Wend., 306.) 
 
 If the constable having an execution neglect to levy 
 on property and sell it for the purpose of satisfying the 
 judgment, and instead thereof arrests the defendant 
 and take him to prison, he will make himself liable to 
 an action. {Piatt v. Sherry, 1 Wend., 236.) So, too, 
 where he sells property and on the sale there is left an 
 overplus more than is sufficient to satisfy the judgment, 
 13 
 
146 THE constable's guide. 
 
 he should return such overplus to the defendant. (3 R. 
 S., 448 [252] ), if he does not before the return day of 
 the execution he will be liable to an action from the 
 defendant, but such action will not lie until the return 
 day unless a demand of the money has been made. 
 {Bortel Y. Ontrander, 15 How., 5'72.) 
 
 If the constable enter upon the duties of his office after 
 his election or appointment and before he shall have 
 taken such oath, he shall forfeit to the town the sum of 
 fifty dollars. (1 R. S., 82'7 [347.] ) 
 
 If any constable shall willfully refuse to execute any 
 lawful process directed to them, requiring the apprehen- 
 sion or confinement of any person charged with a 
 criminal offense ; or shall corruptly and willfully omit 
 to execute such process, by which such person shall 
 escape; or shall willfully suff'er any offender lawfully 
 committed to his custody to escape and go at large ; or, 
 shall receive any gratuity or reward, or any security or 
 engagement for the same, to procure, assist, connive at, 
 or permit any prisoner in his custody, on any civil 
 process, or on any criminal charge "or conviction, to 
 escape, whether such escape be attempted, or effected, 
 or not ; ho shall, upon conviction, be punished by im- 
 prisonment in a county jail not exceeding one year, or 
 by fine not exceeding one thousand dollars, or both such 
 fine and imprisonment, and shall forfeit his office, and 
 shall be forever disqualified to hold any oflSce or place 
 of trust, honor, or profit, under the laws or constitution 
 of this state. (3 R. S., 965 [685.] ) 
 
 Every constable to whom process shall be directed, 
 and delivered agreeably to the provisions of the statute, 
 shall execute the same in person, and shall not act by 
 
THE constable's GUIDE. 14'7 
 
 deputy in any case. (3 R. S., 460 [273.] ) And a con- 
 stable, to whom an execution is directed and delivered, 
 has no power to delegate his authority to another. 
 And it is no defense to an action against a constable 
 for failure to return an execution and pay over the 
 money collected, that he delivered the execution to 
 another constable to levy, and the other collected the 
 money and offered to pay it to the plaintiff, less an 
 extra compensation agreed toby the plaintiff at the time 
 of issuing the execution. {Dows v. McGlynn, 6 Abb., 
 241.) The agreement for extra compensation herein 
 was void, and an oflScer, the fees for whose oflBcial 
 services are prescribed by law, cannot maintain an action 
 on a promise of extra compensation for extra services, 
 although services beyond what could legally be required 
 are rendered by the officer. (Hatch v. Mann, 15 Wend., 
 44.) 
 
 Every constable, or other officer to whom shall be 
 directed and delivered any attachment, summons, pre- 
 cept to summon a jury, warrant to apprehend a witness 
 or any other person, or any other process authorized by 
 law to be issued by a justice of the supreme court, 
 judge of county courts, or justice of the peace in any 
 special proceeding or matter before such jiidge, com- 
 missioner or justice, except civil suits before justices of 
 the peace, shall execute such process as therein com- 
 manded, and for any willful neglect so to do, may be 
 fined by the officer issuing the same in a sum not 
 exceeding twenty-five dollars. 
 
 When any constable, or other officer, who shall have 
 summoned any jury, excepting in civil suits, shall be 
 required by the officer issuing such summons, to attend 
 
148 THE constable's guide. 
 
 such jury and take charge of them, he shall be hound 
 to do so ; and for any willful neglect to obey such order, 
 or for any misconduct while attending such jury, by 
 which the right or remedies of any party to such pro- 
 ceedings may be impaired or prejudiced, such constable 
 or other officer shall be liable to be fined by the officer 
 before whom such jury shall have appeared, in a sum 
 not exceeding twenty-five dollars. Upon such fine 
 being imposed, notice thereof shall be given to the 
 person fined, to the end that he may render any excuse 
 to the officer imposing the same, or show cause why 
 such fine should be remitted. 
 
 If no such excuse be rendered or cause shown within 
 thirty days after the service of such notice, and such 
 fine shall not have been remitted by the officer imposing 
 the same, such officer shall make a special return of the 
 delinquency or misconduct for which such fine was 
 imposed, with the amount thereof, to the next county 
 court of the county in which such delinquent shall 
 reside. 
 
 The clerk of the court to which such return shall be 
 made, shall deliver a copy thereof to the district attorney 
 of the county, with copies of the minutes of fines 
 imposed by such court and in the same manner ; which 
 shall be collected, and may be remitted or mitigated, in 
 the same manner as fines imposed by courts of record 
 upon defaulting jurors. (3 R. S., 865, 866 [551.] ) 
 
 If any constable, or other person, shall confine any 
 lunatic or mad person whose maintenance is chargeable 
 to any town or county, in any other manner or in any 
 other place than such as are prescribed in the statute 
 he shall be guilty of a misdemeanor ; and on conviction 
 
THE constable's guide. 149 
 
 shall be liable to a fine not exceeding two hundred and 
 fifty dollars, or to imprisonment not exceeding one year, 
 or to both, in the discretion of the court before -which 
 the conviction shall be had. (2 E. S., 884 [625.] ) 
 
 Any officer or other person refusing to deliver a copy 
 of any order, warrant, process, or other authority, by 
 which he shall detain any person, to any one who shall 
 demand such copy, and tender the fees thereof, shall 
 forfeit two hundred dollars to the person so detained. 
 (3 R. S., 892 [573.] ) 
 
 If any person be arrested and kept in any house 
 other than the jail of the county, neither the officer 
 arresting him, nor the person in whose custody such 
 prisoner may be, shall demand or receive from such 
 prisoner any other or greater sum for lodging, drink, 
 victuals, or other necessary things, than shall have been 
 prescribed by the court of sessions of the county ; or 
 if no rate shall have been prescribed by such court, 
 such officer or person shall not receive any other or 
 greater sum than shall be allowed by a justice of the 
 peace of the same town, upon proof that the lodgings 
 or other things furnished were so furnished at the 
 request of such prisoner. And in no case shall such 
 officer or person demand or receive any pay or com- 
 pensation for any spirituous liquors sold or delivered to 
 such prisoner. 
 
 A prisoner so kept in any house, may send for and have 
 any beer, ale, cider, victuals and other necessary food, 
 and such bedding, linen, and other necessary things as 
 such prisoner shall think fit, where and from whom he 
 pleases, without any detaining or paying for the same, 
 13* 
 
150 THE constable's GUIDE. 
 
 or any part thereof, to the officer arresting him, or to the 
 person in whose custody such prisoner may he. 
 
 No officer shall demand or receive any money or val- 
 uable thing whatsoever for the chamber rent of any 
 prison, or any fees, compensation or rev^ard for the com- 
 mitment, detaining in custody, release or discharge of 
 any prisoner, other than such fees as are expressly 
 allowed by law. 
 
 When a sheriff or other oflBcer shall arrest any person 
 by virtue of any mesne or final process, or by virtue of 
 any other civil process, he shall not charge such pri- 
 soner with any sum of money, or demand, or receive 
 from him any sum of money, or any valuable thing, for 
 any drink, victuals or other thing whatsoever, furnished 
 or provided for such officer, or for such prisoner, at any 
 tavern, ale-house or public victualing or drinking house. 
 
 No sheriff or other oflBcer who shall have arrested any 
 person shall, while such person is in his custody, demand 
 or receive any gratuity or reward, upon any pretense 
 whatsoever, for keeping such prisoner out of jail, or for 
 waiting for such prisoner to find bail or agree with his 
 adversary, or for waiting for any other purpose. (3 E. 
 S., '724 [426.] ) 
 
 The liability of a constable for not returning an exe- 
 cution is not strictly a penalty within the Revised Statutes, 
 and the action, being for an omission, and not for an 
 oflScial act, is transitory. [Hopkins v. Saywood, 13 Wend., 
 265.) 
 
 No action can be sustained for not returning an ori- 
 ginal execution which the plaintiff has directed and per- 
 mitted to be roffewod. {Roman v. Liswell, 6 Cow., 659.) 
 But it will lie whore the constable voluntarily relin- 
 
THB constable's GUIDE. 151 
 
 quishes a sufficient levy upon property for the defend- 
 ant's body, whereby the debt is lost. {Piatt v. Sherry, 
 1 Wend., 236.) 
 
 The constable must return the execution by deliver- 
 ing it, with an indorsement thereon of his doings under 
 it, to the justice who issued it, at his office, or to some 
 person therein, who is authorized by the justice to 
 receive and file it away. If, when the return is due, the 
 justice is absent from the county, and his office, though 
 open, is untended, the constable cannot return the execu- 
 tion, and an action upon his official bond or security, for 
 his alleged neglect to return it, cannot be maintained. 
 [Ross V. Eisman, 1 Clinton's Digest, 597.) 
 
 In the action upon the security, for not collecting an 
 execution issued upon a justice's judgment, the plaintiff 
 must prove that the justice had jurisdiction both of the 
 subject matter of the action and of the defendant's person. 
 [Westhrooh v. Douglass, 21 Barb., 602.) 
 
 In the city of New York the bond of the constable is 
 to be given to the mayor, aldermen and commonalty of 
 the city in the penal sum of five hundred dollars, and be 
 delivered to the mayor, who shall judge of and deter- 
 mine the competency of the sureties, and file the bond 
 with the clerk of the city and county. And in case of 
 recovery by any person aggrieved, against any such con- 
 stable, it shall be lawful for the judge or judges of the 
 mayor's court, or one of the other courts, upon motion 
 in open court, and upon showing that such recovery has 
 been had, and that the judgment at the time of such 
 motion is unsatisfied, to order the bond to be put in suit ; 
 and when judgment thereon is obtained, the said court 
 shall, on motion in open court, direct so much to be 
 
152 THE CONSTABLE'S GriDB. 
 
 levied ttereon as will pay the debt or damages reco- 
 vered by the party aggrieved, with costs, and to be paid 
 to such party ; and the act provides for further levy 
 upon recovery of other judgments against such consta- 
 ble upon like motion. [Davis v. Haffner, 2 Abb., 187.) 
 A bond, in the form prescribed in the Revised Statutes 
 relating to towns, and made to the people, is, therefore, 
 not to be sustained as a statute security for a constable 
 (Id)., and where a judgment had been obtained on such 
 security the decision was reversed. [Brown v. Jones, 3 
 Abb., 80.) 
 
CHAPTER VIII. 
 
 constables' fees in justices' couets. 
 Fete serving a warrant or summons, twenty-five 
 cents. 
 
 For a copy of every summons delivered on re- 
 quest, or left at the dwelling of tlie defendant in. 
 his absence, fifteen cents. 
 
 For serving an attachment, seventy-five cents ; 
 for a copy thereof, and of the inventory of the 
 property seized, left at the last residence of the 
 defendant, seventy-five cents. 
 
 For serving an execution, five cents for every 
 dollar collected to the amount of fifty dollars, and 
 two and a half cents for every dollar collected over 
 fifty dollars. 
 
 For every mile, going only, more than one mile, 
 when serving a summons, warrant, attachment or 
 execution, ten cents : to be computed from the 
 place of abode of the defendant, or where he shall 
 be found, to the place where the precept is re- 
 turnable. 
 
 For notifying a plaintiff of the service of a war- 
 rant, twenty-five cents; and for going to the 
 plaintiff's residence, or where such notice was 
 served, ten cents for every mile more than one ; for 
 subpoenaing, not exceeding four, twenty-five cents. 
 Summoning a jury, seventy-five cents. 
 For serving affidavit, notice and summons in an 
 
^§§4 THE constable's guide. 
 
 action to recover possession of personal property, 
 fifty cents ; for a copy of such affidavit, notice and 
 summons, left -with the defendant, his agent, or at 
 the last place of ahode of the defendant, fifty 
 cents ; for every mile travelled going and return- 
 ing to serve such affidavit, notice and summons, the 
 distance J;o be computed from the place where the 
 precept is returnable, to the place of the abode of 
 the defendant, or where he shall be found, ten 
 cents ; for taking charge of a jury during their 
 deliberations, fifty cents. (Laws of 1869, ch. 820.) 
 Fees in the city of Albany. 
 
 For serving a summons, forty cents. 
 
 For a copy of every summons delivered on re- 
 quest, or left at the dwelling of the defendant, in 
 his absence, ten cents. 
 
 For serving a warrant, fifty cents. 
 
 For serving an attachment, fifty cents ; for a 
 copy thereof, and of the inventory of the property 
 seized, left at the last place of residence of the 
 defendant, fifty cents. 
 
 For serving an execution, five cents for every 
 dollar collected, to the amount of fifty dollars ; and 
 two and a half cents for every dollar collected 
 over fifty dollars ; and for giving notice of every 
 sale under an execution, twenty-five cents. 
 
 For every mile, going only, more than one mile, 
 serving a summons, warrant, subpoena, attachment 
 or execution, ten cents : to be computed from the 
 place of abode of the person against whom said 
 
THE constable's GUIDE. 155 
 
 process is issued, or where lie shall be found, to 
 the place where the process is returnable. 
 
 For notifying the plaintiff of the service of a 
 Avarrant, twenty-five cents ; and for going to the 
 plaintiff's residence, or where such notice shall be 
 given, six cents for every mUe, going only, more 
 than one mile. 
 
 For summoning a jury, seventy-five cents. 
 
 For serving a subpcena, fifteen cents ; but no 
 allowance shall be made in any judgment for ser- 
 vice, or for the travel in" making such service, 
 upon more than four witnesses in. any action. 
 
 For arresting and committing any person pur- 
 suant to any writ, warrant or process, fifty cents ; 
 and for going to serve the same, the same fee as is 
 provided for going to serve a summons. (3 R. S., 
 407 ; Laws of 1856, ch. 184,) 
 
 In special proceedings. 
 
 Serving a summons, twenty-five cents ; serving 
 a warrant, fifty cents ; mileage, for going only^ six 
 cents for each mile. 
 
 Levying any fine, penalty or sum, pursuant to 
 any warrant, the same fees as are allowed for 
 similar services on executions for justices' courts. 
 
 Arresting and committing any person pursuant 
 to process, one dollar, and mileage, for going only, 
 ten cents. (Laws of 1869, ch. 820.) And for any 
 services not specifically provided for, which maybe 
 rendered by a constable, the same fees as are 
 allowed by law to sheriffs for similar services. 
 
156 THE constable's guide. 
 
 For attending any court pursuant to a notice 
 from the sheriff for that purpose, two dollars for 
 each day, and five cents a mile for each mile 
 travelled in going to and returning from such 
 court ; which fees shall be chargeable to the 
 county, and shall be paid by the treasurer thereof, 
 on the production of the certificate of the clerk, 
 specifying the number of days (3 R. S., 927 [647] ) 
 and distance travelled. (Id.) 
 
 If the constable is summoned and actually 
 attends court, under the statute he is entitled to 
 his fees although he does not actually serve as 
 constable. It is enough that he is attending and 
 ready to serve ; and it is no objection to allowing 
 him his fees, that he was a deputy sheriff and 
 attended court as such. (The People v. Super- 
 visors of Columbia, 4 Cow. 148.) 
 
 On trials of habitual drunkards. 
 
 Summoning a jury, one dollar; and for attend- 
 ing such jury when required, fifty cents ; serving 
 an execution, two cents and five mills per dollar ; 
 advertising goods, or chattels, lands or tenements, 
 for sale on execution, two dollars; and if the 
 execution be stayed or settled, after advertising 
 and before sale, one dollar ; returning an execu- 
 tion, sixty-two cents. (Being the saihe services as 
 are allowed sheriffs for similar proceedings. (3 
 R. S., 924, 925 [645]. ) 
 
 In proceedings to reassess damages, for laying 
 outj altering or discontinuing a road or highway. 
 
THE constable's GUIDE. 157 
 
 For summoning a jury, two dollars; for serving a 
 summons, twenty-ftve centS ; for serving an exe- 
 cution, or levying any fine or penalty pursuant to 
 any warrant, five cents for every dollar collected, 
 to the amount of fifty dollars ; and two and a half 
 cents for every dollar collected over fifty dollars ; 
 for every mile going only, when serving a sum- 
 mons, warrant, or execution, six cents : to be com- 
 puted from the place of abode of the defendant, or 
 where he may be found, to the place where the 
 precept is returnable. (Laws of 1869, ch. 820.) 
 
 Under the law in regard to insolvents, for sum- 
 moning a jury, one dollar and twelve and a half 
 cents. (3. R. S., Ill [38].) 
 
 In proceedings relating to apprentices — to bas- 
 tardy — against beggars and vagrants — against 
 disorderly persons — against fugitives from justice 
 — under statute relative to gaming — against 
 hawkers and peddlers — against lunatics — against 
 pawnbrokers — for summoning witnesses to give 
 deposition — and for arresting persons engaged 
 in racing. Serving a summons, twenty-five cents ; 
 arresting and committing any person pursuant 
 to process, one dollar ; serving a warrant, fifty 
 cents ; mileage, in executing or serving a sum- 
 mons, warrant or execution, going only, for each 
 mile, ten cents. (Laws of 1869, ch. 820.) 
 
 In proceedings for the draining of swamps, for 
 all services rendered therein, one dollar. (3 R. S., 
 864 [550]. ) 
 
 14 
 
158 THE constable's guide. 
 
 In special proceedings in the city of Albany. 
 
 For serving tte summons and the copy thereof, 
 fifty cents. 
 
 For executing the warrant or precept com- 
 manding any person to be put in possession of any 
 land or premises, the possession of which is sought 
 to be recovered, one dollar and fifty cents. 
 
 For all other services in special proceedings, the 
 same fees as are provided for the same services in 
 civil actions in said city. (3 R. S., 408 ; Laws of 
 1856, ch. 184.) 
 
 In criminal cases. 
 
 Serving a warrant or other process, for the 
 arrest of any person, issued by any magistrate or 
 court, seventy-five cents ; and the same fees for 
 travelling to make such service as are allowed for 
 serving a warrant in civil cases (ten cents a mile, 
 for going only.) 
 
 Taking a defendant in custody on a mittimus, 
 twenty-five cents ; conveying a person to the 
 magistrate or court, before whom he is to be 
 brought, twelve and a half cents, if within one 
 mile, and for every mile more, going only, six 
 cents ; for taking a defendant into custody on a 
 mittimus, twenty-five cents ; for every mile 
 travelled in taking the prisoner to jail, going and 
 returning, ten cents. (Laws of 1869, ch. 820.) 
 
 Serving a subpoena, twelve and a half cents for 
 each witness, and the like mileage as allowed for 
 serving a warrant, but mileage shall be allowed only 
 on the distance actually and necessarily travelled. 
 
THE constable's GUIDE. 159 
 
 Whenever a subpoena for witnesses in criminal cases 
 or complaints, containing one or more names, shall be 
 served by a constable or other ofiBcer, such officer shall 
 be allowed for mileage only for the distance, going and 
 returning, actually traveled to make such service upon 
 all the Vfitnesses in such case* of complaint, and not 
 separate mileage for each witness unless the board of 
 supervisors auditing accounts for such services shall 
 deem it equitable to make a further allowance. 
 
 The board of supervisors may allow such further 
 compensation for the service of process, and the ex- 
 penses and trouble attending the same, as they shall 
 deem reasonable. 
 
 For other services in criminal cases, for which no 
 compensation is specially provided by law, such sum as 
 the board of supervisors of the county shall allow. (3 
 R. S., 1046 [750.] ) 
 
 Under the- provision of the statute above referred to, 
 which gives fees to a constable for serving a warrant, 
 and for traveling to make such service, no fees are to 
 be paid, unless the warrant is actually served. The 
 rule is probably without exception, that no fees are 
 allowed to any officer for traveling in order to serve 
 process unless the service is actually made. This prin- 
 ciple is entirely settled, and it is, moreover, one of sound 
 policy. It excites to vigilance and fidelity, whereas the 
 opposite rule would afford a strong temptation to remiss- 
 ness and fraud. [JEx parte Wyles, 1 Denio, 658.) 
 
 A constable is not entitled to fees for a mere levy 
 ■without a sale, but if the sale is prevented by a settle- 
 ment of the parties, he will be entitled to his fees. (See 
 Hildreth v. Mike, 1 Gaines Rep., 192.) If he has levied 
 
160 THE constable's GUIDE. 
 
 upon the property and returned, that it remains on his 
 hands for want of buyers, he is not entitled to his fees. 
 For if no persons attend the sale, it is his duty to adjourn 
 the sale, and give notice to the plaintiff, who should 
 attend and bid himself, and the constable should proceed 
 and sell the first opportunity. (Pixley v. Butts, 2 Cow., 
 421.) 
 
 A constable is entitled only to the fees allowed him 
 by the statute, and an agreement between him and the 
 party for whom he is acting that he shall receive a 
 greater compensation, would be a void agreement which 
 he could not enforce, even, although, services beyond 
 what could legally be required are rendered by the ofii- 
 cer. (Hatch v. Mann, 15 Wend.; 44.) But where no fees 
 are fixed by statute, he is entitled to a reasonable sum 
 for all services rendered by him. (See Smith agt. Bird- 
 sail, 9 Johns., 327.) 
 
 The compensation allowed by law to constables for 
 attending courts of record, and reasonable compensation 
 to other officers for executing process on persons charged 
 with criminal offenses ; for services and expenses in con- 
 veying criminals to jail ; for the service of subpoenas 
 issued by any district attorney ; and for other services 
 in relation to criminal proceedings, for which no specific 
 compensation is prescribed by law, is a county charge, 
 and is to be presented to the board of supervisors to be 
 audited and allowed by them. But before such account 
 or claim shall be passed upon or allowed by them, the 
 officer is to exhibit a just and true statement, in writing, 
 of the nature of the service performed by them. In all 
 cases in which a specific compensation for any service is 
 not provided by law, the officer or person presenting an 
 
THE constable's GcriDB. 160a 
 
 account therefor shall also exhibit, in writing, a 
 just and true statement of the time actually and 
 necessarily devoted to the performance of such ser- 
 vices. ( 1 R. S., 902 [385]. ) 
 
 To entitle any constable or other officer to the 
 increased or additional travel fees provided for in 
 this act (Laws of 1869, ch. 820), such constable or 
 officer shall show by affidavit that such travel was 
 necessary on the process on which it was charged, 
 that no more miles are charged for than were 
 actually and in good faith travelled on the execu- 
 tion of such process ; and that such constable or 
 officer at the time had no other official or private 
 business on such travelled route, and that the 
 charge for going and returning was made only 
 upon one process, which process shall be attached 
 to or described in such affidavit ; and such addi- 
 tional or increased travel fees shall not be allowed 
 by any court or auditing board, unless such court 
 or auditing board shall be satisfied that the miles 
 charged were actually and necessarily travelled on 
 the process named, and on that process only. 
 (Laws of 1869, eh. 820.) 
 
 The board of supervisors act judicially in audit- 
 ing and allowing accounts {HuffY. Shapp, I Sel., 
 67) ; and a mandamus will not lie to a board, of 
 supervisors, to control them in the exercise of their 
 discretion as to the amount at which an account 
 presented shall be audited. ( The People v. Super- 
 visors, cfcc, of New York, 1 Hill, 362.) 
 14* 
 
APPENDIX. 
 
 No. X. 
 
 notice to a constable of his election. 
 
 Office of Town Clerk, 
 Bern, April 8, 1862. 
 Sir : At the annual town me"eting, held in and for the town 
 of Bern, on the 6th day of April you was duly elected one 
 of the constables in and for said town. 
 
 Yours, &c., JOHN GILES, 
 
 Town Clerk. 
 To Thomas Brown, Esq. 
 
 Wo. s. /^ 
 
 appointment of a constable bt th^ee justices. 
 Whereas, one of the offices of constable for the town of 
 Bern has become vacant by the death (resignation, or, re- 
 moval from the town, or, removal from office) of Thomas 
 Brown, we do hereby appoint John Brown of said town, as 
 a constable of said town, to fill the office made vacant by 
 the death (or, resignation, or, removal) of the said Thomas 
 Brown, to hold his office for the balance of the term for 
 which the said Thomas was elected (or, appointed), and until 
 his successor shall be elected or appointed and qualified. 
 
162 THE constable's guide. 
 
 Witness our hands ivnd seals, at the town of Bern, this 8th 
 day of July, 1861. 
 
 N. M., [l. s.] 
 N. P., [l. s.] 
 E. a, [l. s.] 
 Justices of {lie Peace of said Town. 
 
 RESIGNATION OF A CONSTABLE. 
 
 To A. B., 0. D. and E. F., Esqrs., 
 
 Three Justices of the town of Bern : 
 
 The undersigned having been at the last annual town 
 meeting of the town of Bern, duly elected one of the con- 
 stables in and for said town, and having afterwards duly 
 qualified and entered upon the duties of his ofi^ce as such 
 constable, is now so unwell as to be unable to attend to and 
 fulfill the duties of said of&ce, and it being uncertain whether 
 he will be able so to do for many weeks to come, he hereby 
 tenders his resignation of said ofifice, 'and asks that some 
 other person may be appointed to perform the duties of the 
 same for the remainder of his official term. 
 
 THOMAS BROWN. 
 
 Been, June 2, 1861. 
 
 NOTICE TO THE CLERK OF THE TOWN OF SUCH KESIQNATION. 
 
 To G. H., Esq., 
 
 Clark of the Town of Bern: 
 Take notice, that Thomas Brown has tendered to us his 
 resignation of the office of constable in and for said town, 
 and that we have examined in regard to the cause shown 
 for such resignation, and being satisfied that a good and suf- 
 ficient cause has been shown why such resignation should 
 
THE constable's GTJIDE. 163 
 
 be accepted, we have accepted the same, and hereby declare 
 the said office of constable vacant. 
 
 Yours, &c., A. B., 
 
 0. D., 
 E. F., 
 Three Justices of said Town. 
 Been, June 2, 1861. 
 
 Wo. s. 
 
 COMPLAINT TO REMOVE A CONSTABLE. 
 
 To A. B., 0. D. and B. F., 
 
 Three Justices of the Town of Knox : 
 The undersigned hereby presents this complaint against 
 Thomas Brown, one of the constables of the town of Knox, 
 and hereby shows that on or about the 6th day of Novem- 
 ber, 1860, one L. M. obtained a judgment against M. L. of 
 said town of Knox, for the sum of forty dollars damages 
 and two dollars costs, and that execution upon such judg- 
 ment was duly issued on said judgment, and delivered to 
 the said Thomas Brown on or about the 8th day of Novem- 
 ber, 1860; that the said Thomas Brown immediately after 
 the receipt by him of the said execution, collected the money 
 due on the said judgment, but he has neglected to pay the 
 proceeds or any part thereof to the plaintiff in the said 
 judgment, or to the justice who executed the same ; and 
 that after the return day of said execution, the said L. M. 
 commenced an action against 0. P. and R. S., the sureties 
 of the said constable, on account of the fault and delay of the 
 said Thomas Brown in paying over the money so collected 
 on said execution, and obtained judgment against the said 
 sureties on or about the 6th day of June, 1861, before E. S., 
 one of the justices of the peace of said town, wherefore 
 your complainant demands, that on account of the faults, 
 neglect and shortcoming of the said Thomas Brown, he be 
 
164 THE constable's guide. 
 
 removed from his ofBce, in accordance with the provisions 
 of the statute in such case made and provided. 
 
 Yours, &c., E. B. 
 
 Been, July 10, 1861. 
 
 ISO. 6. 
 
 NOTICE TO CONSTABLE TO APPEAR. 
 
 To Thomas Brown, Esq. : 
 
 Sir : Take notice that a complaint against you, and asking 
 for your removal from the office of constable, has been laid 
 before us, the undersigned, three of the justices of the peace 
 of the town of Knox, of which the within (or, the foregoing) 
 is a true copy, and that you are required to appear before us 
 on the 20th day of July, 1861, at ten o'clock in the fore- 
 noon at the dwelling-house of A. B., in said town of Knox, 
 to show cause, if any you have, why you should not be 
 removed from the office of constable, and the same be de- 
 clared vacant. 
 July 11, 1861. 
 
 Tours, &c., A. B., 
 
 CD., 
 E. F., 
 Justices of the Town of Knox. 
 
 Wo. ly. 
 
 ORDER FOR REMOVAL OF CONSTABLE FOR NOT PAYING OVER MO- 
 NET COLLECTED BY HIM. 
 
 County of Albany, Town of Knox, ss. Whereas, on the 
 10th day of July, 1861, a complaint was duly made to us, 
 the undersigned, three of the justices of the peace of said 
 town, by R. B., against Thomas Brown, a constable of said 
 town, for that an execution for forty dollars damages, and 
 two dollars costs, in favor of L. M. against M. L. of said 
 town of Knox, was duly issued by C. R., one of the jus- 
 
THE constable's GUIDE. ] 65 
 
 does of the pc;icc of said town, on the 8th day of Novem- 
 ber, ISCO, and placed in the hands of the said Thomas 
 Brown, constable: that the said Thomas Brown has col- 
 lected all {or, a part of) the money due on said execution ; 
 and a recovery for the money so collected was on the 6th 
 day of June, 1861, had before the said C. E., Esqr., justice 
 of the peace, as aforesaid, against O. P. and E. 8., the sure- 
 ties of the said constable, whereupon, we having duly sum- 
 moned the said Thomas Brown to appear before us this day 
 at the dwelling-house of A. B., in said town, at ten o'clock 
 in the forenoon, to show cause whjihe should not be re- 
 moved from his said office, as constable ; and the said con- 
 stable having refused or neglected to appear upon such 
 summons (or, having appeared and having failed to justify 
 under or to refute the said complaint), and the said com- 
 plaint having been established to the satisfaction of said 
 justices after hearing the party {or, parties) : Now, there- 
 fore, by virtue of the statute in such case made and provided, 
 and because the said Thomas Brown has neglected and 
 refused to pay over the money collected by him, as stated 
 in the said complaint, and a recovery therefor hath been had 
 against his sureties, we do hereby remove the said Thomas 
 Brown from the said office of constable. 
 
 G-iven under our hands this 20th day of July, 1861. 
 
 A. B., 
 CD., 
 
 B. F., 
 Three Justices of said Town. 
 
 Wo. s. 
 
 certificate of town clerk on copt order. 
 
 Office of Town Clerk, 
 Bern, July 21, 1861. 
 To Thomas Brown, Esq. : • 
 
 Sir: Take notice that the within is a true copy of an 
 
1G6 THE constable's guide. 
 
 order, and of the whole of such original order, filed in the 
 office of the Town Clerk of the town of Knox on the 20th 
 day of July, 1861. T. C, 
 
 Town Clerk of Bern. 
 
 Wo. &. 
 
 SECURITY OF A CONSTABfcE. 
 
 We, T. B., elected (or, appointed) a constable in and for 
 the town of Nassau, in the county of Rensselaer, and.C. B. 
 and E. H. of said to\^n, do hereby, jointly and severally, 
 agree to pay to each and every person who may be entitled 
 thereto, all such sums of money as the said constable may 
 become liable to pay, on account of any execution which 
 shall be delivered to him for collection. Witness our hands 
 this 10th day of March, 1862. 
 
 In presence of T. B. 
 
 T. 0. C. B. 
 
 E. a 
 
 ISTo. lO. 
 
 APPROVAL OF SURETIES INDORSED THEKEOK. 
 
 I hereby approve of the form and sufficiency of the within 
 security. 
 
 March 10, 1862. T. C, Town Clerh 
 
 ' (or Supervisor), 
 of the town of Nassau. 
 
 TSo. 11. 
 
 CONSTITUTIONAL OATH OF OFFICE. 
 
 County of Rensselaer, ss. I, Thomas Brown, do solemnly 
 swear (or, affirm) that I will support the Constitution of the 
 United States and the Constitution of the State of New 
 York, and that I will faithfully discharge the duties of the 
 
THE constable's GUIDE. 167 
 
 office of constable of the town of Nassau, in said county, 
 according to the best of my ability. T. B. 
 
 Sworn to before me, this ) 
 10th day of March, 1862, j 
 
 E. W., Justice of the Peace. 
 
 notice to the justices oe the town that the constable has 
 not filed his oath of office or his security. 
 
 Office of the Town Clerk, 
 
 Nassau, leb. 15, 1862. 
 To the Justices of the Peace of said town : 
 
 Take notice that on the 1st day of February, 1862, 
 Thomas Brown was duly elected (or, appointed) one of the 
 constables of said town of Nassau, and notice of such elec- 
 tion (or, appointment) was duly given to the said T. B. on 
 the 2d of Feb., 1862, of such election (or, appointment), and 
 the said T. B. has not filed in the proper office his constitu- 
 tional oath of office or the security required by statute. 
 
 Yours, &c., T. 0., Town Clerk 
 
 To A. B., &c., &c., 
 Justices of said town. 
 
 JI(o. 13. 
 
 SUMMONS. 
 
 Town of Bern, Albany county, ss. To any Constable of 
 said county. Greeting : The People of the State of New 
 York command you to summon C. D. to appear before me, 
 the undersigned, one of the justices of the peace of the town 
 aforesaid, at my office, in the town hall, in the said town, on 
 the 31st (or, 27th) day of January, 1862, at nine o'clock in 
 the forenoon, to answer A. B. in a civil action to his damage 
 one hundred dollars or under. And have you then there 
 15 
 
168 THE constable's guide. 
 
 this precept. Witness my hand the 24th day of January, 
 1862. J. P., 
 
 Justice of the Peace, 
 
 PROOF OF SERVICE OP StTMMONS INDORSED THEREON. 
 
 Personally served on the within named defendant,- C. D., 
 at the town of Bern, the 24th day of January, 1802. 
 
 T. B., Constabk. 
 Oh, C. D. 
 
 Served on the within named defendant, by leaving a copy 
 thereof at the last place of abode of the said defendant, in 
 the presence of a member of the family of suitable age and 
 discretion, and informed such person of its contents the 24th 
 
 day of January, 1862. 
 
 T. B., Constable. 
 Or, 
 (where one of thfe defendants cannot be found add to 
 either of the last two forms), but the defendants. F. cannot 
 be found. 
 
 ISO. as. 
 
 PROOF OF SERVICE ON JV CORPORATION OR COMPANT. 
 
 Served on the within named defendant, by giving a copy 
 of the same to and leaving it with C. D., the President (or, 
 treasurer, or, managing agent,) of said corporation {or, com- 
 pany,) at the town of Knox, on the 24th day of January, 
 
 1802. 
 
 T. B., Constable. 
 
 ISO. le. 
 
 PROOF OF SERVICE ON A RAILROAD CORPORATION. 
 
 Served on the within named defendant on the 24th day 
 
THE constable's guide. 169 
 
 of January, 1862, at the town of RensSelaerville, by giving 
 a copy of the. same to, and leaving it with C. D., * the person 
 designated by the said E. E. corporation as the person on 
 
 whom such process is to be served. 
 
 T. B., Constable. 
 Or, 
 (as in the last form to the * and then) the freight agent of 
 said corporation, there being no officer of said corporation 
 within this county, and no person having been designated 
 by said- corporation as the person on whom such service is 
 
 to be made. 
 
 T. B., Constable. 
 
 TSo. xr. 
 
 CIVIL WARRANT. 
 
 Rensselaer County, Town of Nassau, ss. To any Constable 
 of the said county : These are, in the name of the People 
 of the State of New York, to command you forthwitli to 
 take 0. D., and personally to bring him before me, at my 
 office in said town, to answer A. B. in a civil action, for 
 money collected by him ii} a fiduciary capacity to his damage 
 one hundred dollars or under ; and do you notify the plaintiff 
 of his arrest, and make due return hereupon, as by law 
 required. 
 
 Dated at said town, this 24th day of January, 1862. 
 
 J. P., Justice of the Peace, 
 
 Wo. 18. 
 
 RETURN TO WARRANT INDORSED THEREON. 
 
 By virtue of the within warrant, I have taken and have 
 in my custody the within named 0. D., and I have notified 
 the plaintifi" of his arrest. March 25, 1862. 
 
 T. B., Constable. 
 Ob, 
 by virtue of the within warrant, I have taken, and have in 
 
170 THE constable's GUIDE. 
 
 my custody the wfthin named 0. D., but the -within named 
 E. F. cannot be found by me, and I have notified the plaintiff 
 of such arrest. 
 
 T. B., Constable. 
 March 25, 1862. 
 
 No. X9. 
 
 KET0RN TO WAKEANT JUSTICE ABSENT OR OUT OF OmOE. 
 
 (Add to either of the last two forms the following :) and 
 I took the said defendant before the said J. P., who issued 
 the said warrant, and because the said J. P. * was unable to 
 try the cause, he directed me to take him before some other 
 justice, and I now have him, by virtue of said warrant and 
 direction. 
 
 Oe, 
 (as in the last form to the * and then) is no longer a justice of 
 the peace, his term of ofiice having expired, and now have 
 the said defendant by virtue of the said warrant and of the 
 statute in such case made and provided. 
 
 T. B., Constable. 
 
 March 30, 1862. 
 
 ATTACHMENT. 
 
 County of Albany, Town of Bethlehem, ss. To any Con- 
 stable of the said county, Greeting: Whereas, A. B. has 
 made application to the undersigned^ on oath, in writing, for 
 an attachment against the property of C. D., stating that the 
 said C. D. is indebted to the said A. B. in the sum of §40 
 over and above all discounts, which debt arose on contract 
 {or, upon a judgment) ; and that the said C. D. is about to 
 depart from the said county, with intent to defraud his 
 creditors, therefore the People of the State of New York 
 command you that you attach so much of the goods and 
 chattels of the said C. D., as will be sufficient to satisfy the 
 
THE constable's GUIDE. Ill 
 
 said claim, and safely keep the same, to satisfy any judg- 
 ment tliat may be recovered on this attachment ; and that 
 you make return of your proceedings therein to the under- 
 signed, justice of the peace, of said county, on the 4th day 
 of June (or, 31st day of May), 1862, at ten o'clock in the 
 forenoon, at his ofiSoe in said town. Dated the 28th day of 
 
 May, 1862. 
 
 J. P., Justice. 
 
 ISO. ai. 
 
 IKVENTORT OF GOODS ATTACHED. 
 
 By virtue of the vfithin attachment, I have this day at- 
 tached and taken into my possession and custody, the fol- 
 lowing goods and chattels, to wit: (or, the goods and 
 
 chattels specified in the annexed inventory). 
 
 T. B., Constaih. 
 
 Dated May 29, 1862. 
 
 CEETITIOATE ON COPT ATTACHMENT AND INVENTORY. 
 
 I hereby certify that the foregoing is a true copy of the 
 attachment, and of the whole of the attachment, issued by 
 J. P., Esq., a justice of the peace, and by virtue of which 
 I have taken into my possession the goods and chattels, of 
 which the foregoing is a copy of the inventory as made 
 by me. 
 
 T. B., Constable. 
 
 Bethlehem, May 29, 1862. 
 
 Wo. as. 
 
 receipt for property attached. 
 This is to certify that I have this day received from T. B., 
 Constable, the following goods and chattels, to wit: (liere 
 15* 
 
172 THE coustabi-e's guide. 
 
 insert a list of tlie goods) which said goods and chattels 
 were taken by the said constable, by virtue of an attach- 
 ment issued by one J. P., a justice of the peace, in an 
 action in which A. B. is plaintiff and C. D. is defendant, 
 and wliich was commenced to recover the sum of forty dol- 
 lars, and I hereby agree to return the said property, and 
 every part thereof, to the said constable on his demand of 
 the same, or to pay the said debt, together with the costs in 
 said action, and the fees of the said constable in said action. 
 
 E. C. P. 
 CoLtJMBUs, March 11, 1862. 
 
 3Vo. 34. 
 
 BOND OF DEFENDANT TO PREVENT REMOVAL OF GOODS ATTACIIED. 
 
 Know aU men by these presents : That we, C. D. and R. R. 
 are held and firmly bound unto T. B., constable, in the sum 
 of one hundred dollars (double the sum stated in the attach- 
 ment), to be paid to him, his executors, administrators or 
 assigns, to which payment, well and truly to be made, we 
 jointly and severally bind ourselves, our and each of our 
 heirs, executors and administrators, firmly by these presents. 
 Sealed with our seals, and dated this 11th day of March, 
 18C2. 
 
 Whereas, T. B., one of the constables of the town of 
 Columbus, in the county of Chenango, by virtue of a certain 
 attachment issued by J. P., Esq., one of the justices of the 
 peace of said town, on the application, and in favor of A. B., 
 against the goods and chattels of the above bounden C. D., • 
 has attached the following goods and chattels of the -said 
 C. D., to wit: (liere insertnamesof the articles) (or, a hst of 
 ffhxch said goods and chattels is hereto annexed.) 
 
 Now, therefore, the condition of this obligation is such, 
 that if the said goods and chattels shall be produced to satisfy 
 any execution that may be issued upon any judgment which 
 
THE constable's guide. I'J'S 
 
 shall be obtained by the said A. B., upon the said attach- 
 ment, within six months after the date of this bond, then 
 this obligation to be void, otherwise of force. 
 
 0. D. [h. S.J 
 R. E. [l. S.J 
 
 BOND TO BE Gr7EN BY THE CLAIMANT OF THE GOODS ATTAOnED. 
 
 Know all men by these presents : That we, D. S., R. R. 
 and P. P., are held and firmly bound unto A. B., in the sum 
 of one hundred and fifty dollars (double the value of the 
 property attached), to be paid to him, his executors, adminis- 
 trators or assigns; to which payment well and truly to be 
 made, we jointly and severally bind ourselves, our and each 
 of our heirs, executors and administrators, firmly by these 
 presents. Sealed with our seals, and dated this March 11, 
 1862. 
 
 Whereas, certain goods (insert list, or, a list of which is 
 hereto annexed) were, ou the 10th day of March, 1862, 
 seized by T. B., constable, by virtue of an attachment issued 
 by J. P., Esq., one of the justices of the peace of the county 
 of Albany, in favor of the above named A. B., against C. D. 
 And, whereas, the said D. S. claims the said goods as his 
 property. 
 
 Now, therefore, the condition of this obligation is such, 
 that if, in a suit to be brought on this obligation within 
 three months from the date hereof, the said D. S. shall estab- 
 lish that he was the owner of the said goods at the time of 
 the said seizure ; and in case of his failure to do so, if the 
 said D. S. shall pay to the said A. B. the value of the said 
 goods with interest, then this obligation to be void, other- 
 wise to remain in full force and virtue. 
 
 D. S. [l. s. 
 
 E. R. [l. s. 
 P. P. [l. s. 
 
in 
 
 THE CONSTABLE S GUIDE. 
 
 QUALIFICATION OF SURETY INDORSED ON BOND. 
 
 Albany County, ss. E. R., being duly sworn, says, that 
 he is a resident and freeholder (or, householder) within said 
 county, and is worth the sum of one hundred dollars, over 
 and above all just debts and liabilities. 
 
 K. E. 
 
 Sworn before me this ) 
 March 11, 1802, ] 
 
 T. B., Constable. 
 
 ISO. sv. 
 
 APPROVAL or BOND. 
 
 I hereby approve of ifeUlrm and sufficiency of the within 
 security. March 11, 1862. 
 
 T. B., Constable. 
 
 Wo. 38. 
 
 RETURN TO ATTACHMENT — DEFENDANT FOUND. 
 
 By virtue of the within attachment, I did, on the 5th day 
 of March, 1862, attach and take into my custody the follow- 
 ing goods and chattels of the defendant, to wit: (specify the 
 articles, or, the goods and chattels of the defendant specified 
 in the annexed inventory,) 
 
 And I did immediately make an inventory of the pro- 
 perty attached,* and served a copy of the attachment and 
 of the said inventory, by me certiiied, on the said defendant 
 personally. 
 
 T. B., Constable. 
 
 Wo. 39. 
 
 RETURN TO ATTACUMENT DEFENDANT NOT FOUND. 
 
 ( As m tJie last form to the * and then ) and because the 
 
THE constable's guide. 17o 
 
 said defendant could not be found in said county, I left a 
 copy of this attaoliment and of the said inventory, by me 
 certified, at the last place of residence of the said defendant 
 (or, if the defendant has no place of residence in the 
 county, then ) with J. B., in whose possession I found the 
 said goods and chattels, the said defendant having no place 
 of residence, and cannot be found within this county. 
 
 T. B., Constable. 
 
 March 11, 1862. 
 
 ( If the defendant or a claimant gives a bond to prevent 
 the removal of the goods, then add to either of the last two 
 forms the following :) But the said goods and chattels were 
 delivered up to C. D., the defendant (or, claimant), upon 
 receiving the bond herewith returned. 
 
 Wo. 30. 
 
 AFFIDAVIT ON CLAIM OF DELIVERT OF PERSONAL PEOPEETT. 
 
 ALBANY JUSTICES' COURT. 
 
 A. B. I 
 
 agt r 
 
 Q D. ) 
 
 County of Albany, ss. A. B., the plaintiff in this action, 
 being duly sworn, says, that he is the owner of the follow- 
 ing personal property, claimed in this action (describe it). 
 That the said property is wrongfully detained from the 
 plaintiff by C. D., the defendant herein. That the alleged 
 cause of the detention thereof, according to this deponent's 
 best knowledge, information and belief, is as follows : That 
 the said C. D. claims to own said property, alleging that he 
 bought the same of some person, to this deponent unknown ; 
 that the said property has not been taken for a tax, assess- 
 ment or fine, pursuant to a statute, or seized under an exe- 
 cution or attachment against the property of the plaintiff, 
 
1 To THE constable's guide. 
 
 and that the actual value of said property, according to the 
 best knowledge and belief of this deponent, is forty-five 
 dollars. 
 
 Sworn, &c. A. B. 
 
 ISO. 31. 
 
 INDORSEMENT ON THE AFFIDAVIT BY THE JUSTICE. 
 
 To any of the constables of Albany county: You are 
 hereby required to take the property described herein from 
 the defendant, and keep the same to be disposed of accord- 
 ing to law. 
 
 J. P., Justice. 
 
 Wo. 33. 
 
 UNDERTAKING ON CLAIM OF DELIVERT OF PERSONAL PROPERTY. 
 
 (Title.) 
 
 Whereas, the above named plaintiff- has commenced (or, 
 is about to commence) an action against the above named 
 defendant for the recovery of certain personal property 
 mentioned and described in the af&davit of A. B., made for 
 such purpose. 
 
 Now, therefore, we, A. B., of Bern, and Gt. H., of ^Ves- 
 terlo, and E. S., of Bern, aU in Albany county, do acknow- 
 ledge ourselves bound in the sum of $100 for the prosecution 
 of the said action ; for a return of the said property to the 
 defendant if return thereof be adjudged ; and for the pay- 
 ment to the defendant of such sum as may for any cause be 
 
 recovered against the plaintiff in this action. 
 
 A. B. 
 
 a. H. 
 
 E. S. 
 
THE constable's GUIDE. 177 
 
 JSo. 33. 
 
 ACKNOWLEDGMENT INDORSED. 
 
 Albany County, ss. I certify that on this I2th day of 
 March, 1862, before me came A. B.,'G. H. and E. S., to me 
 personally known to be the persons described in and who 
 executed the foregoing undertaking, and severally acknow- 
 ledged the execution thereof 
 
 J. P., Justice of the Peace. 
 
 Wo. 34. 
 
 QUALIFICATION OF SURETY IHDORSED. 
 
 Albany County, ss. G. H. and E. S., being severally 
 duly sworn by me, each for himself, deposeth and says, 
 and first the said G. H., says he is a householder (or, free- 
 holder), residing in said county and is worth $100, over and 
 above all debts and responsibilities he owes or has incurred ; 
 and the said E. S., says he is a householder (or, freeholder), 
 and resides in said county and is worth $100, over and 
 above all debts and responsibilities he owes or has incurred. 
 
 G. H. 
 
 Sworn, &c. E. S. 
 
 SUMMONS IN REPLEVIN, OR FOR DELIVERY OF PERSONAL PRO- 
 PERTY. 
 
 Town of Bern,, Albany County, ss. To any Constable of 
 said county. Greeting: The People of the State of New 
 York command you to summon 0. D., defendant, to appear 
 before me, the undersigned, one of the justices of the peace 
 of the town aforesaid, at my office in said town on the 12th 
 day of March, 1862. at nine o'clock in the forenoon, to 
 answer A. B., plaintiff, in a civil action to his damage, one 
 
1'8 THE constable's GUIDE. 
 
 hundred dollars, or under; and if said 0. D. shall fail to 
 appear on the return day of this summons, the said A. B. 
 plaintiff, will have judgment for the possession of the pro- 
 perty described in the affidavit herewith served with his 
 cost and disbursements in this action. And have you then 
 there this precept. Witness my hand, this March 5, 1862. 
 
 J. P., Jv^ice of the Peace. 
 
 Wo. 36. 
 
 EEIORN TO SUMMONS — DEFENDANT rOUND. 
 
 Personally served the within summons and the accom- 
 panying affidavit and notice, and undertaking on the within 
 defendant, C. D., at the town of Bern, March 5, 1862, and 
 I have taken into my possession the property described in 
 said affidavit. 
 
 T. B., Constahh. 
 
 Wo. sy. 
 
 RETURN TO SUMMONS — DEFENDANT NOT FOUND. 
 
 Served the within summons and the annexed affidavit 
 and notice, and undertaking on the-within defendant, 0. D., 
 at the town of Bern, March 5, 1862, by giving copies thereof 
 to, and leaving the same with A. G-., the agent of the said 
 defendant, in whose possession said property was found by 
 me, (or, by leaving said copies at the usual place of abode 
 of the defendant with some person of suitable age and dis- 
 cretion, the said 0. D. being absent from the county.) and I 
 have taken into my possession the property described in 
 said affidavit. 
 
 T. B., Constable. 
 
THE constable's GUIDE. 179 
 
 No. 3S. 
 
 NOTICE EXCEPTING TO SURETIES. 
 
 (Title.) 
 Take notice, that the defendant herein excepts to the 
 
 surety in the plaintiff's bond or undertaking in the above 
 
 mentioned action. 
 
 To A. B., Esq., Plaintiff. Tours, &c., 
 
 Bern, March 7, 1862. C. D., Defendant. 
 
 UNDERTAKING OF DEFENDANT FOR RETURN OF THE PROPERTY. 
 
 (Title.) 
 
 Whereas, the above named defendant has required (or. is 
 about to require) the return to him of the personal property, 
 taken by T. B., one of the constables of said county, to wit : 
 (describe property) being certain personal property men- 
 tioned and described in the affidavit of A. B., made in this 
 action. Now, therefore, we, 0. D., of the town of Bern, 
 and P. P., of the same place, do acknowledge ourselves 
 bound in the sum of one hundred dollars for the delivery of 
 the said property to the plaintiff, if delivery thereof be 
 adjudged, and for the payment to the plaintiff of such sum 
 as may for any cause be recovered against the defendant in 
 this action. 
 
 CD. 
 
 Bern, March 10, 1862. P. P. 
 
 Wo. 40. 
 
 AFFIDAVIT OF THIRD PARTY CLAIMING PROPERTY. 
 
 County of Albany, ss. E. 0., being sworn, says, that he 
 is the owner and entitled to the possession of the following 
 property : (describe it) taken by T. B., one of the constables 
 16 
 
180 THE constable's GUIDE. 
 
 of the town of Bern, by virtue of certain proceedings in an 
 action, in ■which A. B. is plaintiff and 0. D. is defendant; 
 that this deponent purchased the said property of one E. R., 
 sometime in the summer of 1860, and has continued to own 
 said property ever since, and hereby demands that said pro- 
 perty be delivered to this deponent. 
 
 Sworn, &o. E. 0. 
 
 No. -41. 
 
 NOTICE TO PLAINTIFF OF DEMAND OF THIRD PABTT INDORSED ON 
 AFFIDAVIT. 
 
 To A. B., Esq. : 
 
 Sir — Take notice of the within affidavit and demand 
 which was served on me this March 8, 18C2, and unless 
 you furnish the indemnity prescribed by the statute, I 
 - shall deliver said property to the said R. O. 
 
 Yours, &c., 
 Bern, March 9, 1862. T. B., Constable. 
 
 No. 4a. 
 
 UNDERTAKING INDEMNIFYING CONSTABLE. 
 
 (Title.) 
 
 "Whereas, the above named plaintiff has commenced an 
 action against the above named defendant for the recovery 
 of certain personal property mentioned and described in 
 the affidavit made for such purpose, which said property, or 
 a part thereof, T. B., one of the constables of the town of 
 Bern, has taken into his possession, and one E. 0. claims 
 that he owns and is entitled to the possession of such pro- 
 perty, and has made an affidavit of his title thereto, and 
 right to the possession thereof, and served the same upon 
 the constable : 
 
 Now therefore^ we, A. B., B. B. and 0. B., of the town 
 
THE constable's guidb. 181 
 
 of Bern, do acknowledge ourselves bound in the sum of 
 one hundred dollars, to indemnify and save harmless the 
 said T. B., constable, from such claim and demand made by 
 the said R. 0. 
 
 A. B. 
 
 B. B. 
 
 C. B. 
 
 (Add acknowledgment and qualification of sureties that 
 they are worth double the value of the property, and are 
 freeholders and householders. 
 
 Wo. 43. 
 
 justices' court subpcena. 
 
 Albany County, ss. To M. N.. 0. P. and E. S., Greeting : 
 In the name of the People of the State of New York, you 
 are commanded to appear before me, the undersigned, a 
 justice of the peace of said county, at my office in the town 
 of Bern, in the said county, on the 12th day of March, 
 1862, at nine o'clock in the forenoon, to give evidence in a 
 civil action then and there to be tried between A. B., plain- 
 tiff, and 0. D., defendant, on the part of the plaintiff (or, 
 defendant). Hereof fail not at your peril. 
 
 Given under my hand in said town, this Cth day of 
 March, 1862. 
 
 J. P., Justice of the Peace. 
 
 Wo. 44. 
 
 AFFIDAVIT OF SERVICE OF SUBPOENA. 
 
 Albany County, ss. T. B., being duly sworn, says, that on 
 the 7th day of March, 1862, at the town of Bern in said 
 county, he personally served the within subpoena on M. N., 
 within named, by reading the same (or, stating the contents . 
 
182 THE constable's guide. 
 
 thereof) to him, and at the same time paying (or, tendering ) 
 to him the sum of 25 (or 13) cents. 
 
 Sworn, &c. T. B. 
 
 TTo. 4JS. 
 
 ATTACHMENT FOR WITNESS. 
 
 Albany County, ss. The People of the State of New 
 York, to any Constable of said county, Greeting : We com- 
 mand you to attach M. N., and bring him before the under- 
 signed, a justice of the peace of said county, at his of&ce in 
 the town of Bern in said county, forthwith (or, on the 12th 
 day of March, 1862, at nine o'clock in the forenoon), to 
 testify those things which he may know, in a certain cause 
 now pending before me between A. B., plaintiff, and C. D., 
 defendant, on the part of the plaintiff (or, defendant), and 
 also to answer all such matters as shall be objected against 
 him, for that he, having been duly subpenaed to attend the 
 trial of said cause, has refused (or, neglected) to attend in 
 conformity to such subpoena, and have you then there this 
 precept. 
 
 Witness my hand, this 10th day of March, 1862, 
 
 J. P., Justice of the Peace. 
 
 Wo. .46. 
 
 VENIRE. 
 
 State of New Yorh, Albany County, Town of Bern, ss. 
 To any Constable of said County, Greeting : The People of 
 the State of New York, command you to summon twelve 
 good and lawful men, in the town of Bern, in said county, 
 qualified to serve as jurors, and not exempt from serving on 
 juries in courts of record, and who are in no wise of kin to 
 either party, nor interested in the suit hereinafter mentioned, 
 
THE constable's guide. 183 
 
 to appear before me, -one of the justices of the peace of said 
 county, at my office in the town of Bern in said county, on 
 the 12th day of March, 1862, at nine o'clock in the forenoon, 
 to make a jury for the trial of a civil action between" A. B., 
 plaintiff, and 0. D., defendant ; and you are also required to 
 make a list of the persons summoned, which you will certify 
 and annex to this venire, and make return thereof to me. 
 Given under my hand, this 5th day of March, 1862. 
 
 J. P., Justice of the Peace. 
 
 RETURN TO THE VENIRE. 
 
 By virtue of the within precept, I have personally sum- 
 moned as jurors the several persons named in the' annexed 
 hst. 
 
 March 12, 1862. 
 
 T. B., Constable. 
 Names of jurors, 
 
 0.0. 
 
 D. D. 
 
 &c., &c. 
 
 No. -48. 
 
 OATH OF CONSTABLE TO KEEP JURY ON ADJOURNMENT. 
 
 Tou shall retire with such jurors as have leave of absence 
 from this court : you shall not speak to them yourself in 
 relation to this trial, nor suffer any person to speak to them ; 
 and you shall return them without delay. So help you 
 God. 
 
184 TOE constable's guide. 
 
 Wo. 4a. 
 
 constable's oath ok hetiring with jurors. 
 Yoii swear, in the presence of Almighty Grod, that you, 
 to the utmost of your ability, will keep the persons, sworn 
 as jurors on this trial, together in some convenient place, 
 without any meat of drink, except such as shall be oidered 
 by me ; that you will not suffer any communication, orally 
 Or otherwise, to be made to them ; that you will not com- 
 municate with them yourself, orally or otherwise, unless by 
 my order, or to ask them whether they have agreed on their 
 verdict, ■until they shall be discharged ; and that you will 
 not, before they render their verdict, communicate to any 
 person the state of their deliberations, in the verdict they 
 have airreed on. 
 
 Wo. SO. 
 
 EXECUTION AGAINST PEOPEETT. 
 
 Albany County, Town of Bern, ss. Tlie People of the State 
 of New York to any Constable in said county. Whereas, 
 juflgment has been rendered before me, the undersigned, 
 against C. D., in favor of A. B., for forty-five dollars and five 
 cents damages, and four dollars and five cents costs : These 
 are therefore to command you forthwith to levy of the 
 goods and chattels of the said C. D., (except such as are 
 exempt by law,) the amount of said judgment, with interest 
 from the 12th day of March, 1862, on which day judgment 
 was rendered, till received ; and bring the money before me 
 within sixty days, to render to the said A. B., for his dam- 
 ages and costs.* And make return in sixty days from the 
 date hereof, according to law. 
 
 Dated at the said town, the 12th day of March, 1862. 
 
THE constable's guide. 185 
 
 Damages, $45 05 
 
 Costs, 4 05 
 
 Judgment, $49 10 
 
 J. P., Justice of the Peace. 
 
 JSo. S\. 
 
 t 
 
 EXECnXION ASAINST THE BODY. 
 
 (As in the last form to the '^ then add.) And for want of 
 goods and chattels thereon to levy, you are commanded to 
 take the body of the said C. D., and convey him to the com- 
 mon jail of the said county, the keeper whereof is hereby 
 commanded to receive the said C. D., and him safely keep 
 until duly disoharged'acoording to law. 
 
 Dated at the said town, the 12th day of March, 1862. 
 
 Damages,' $45 05 
 
 Costs, 4 05 
 
 Judgment, $49 10 
 
 ■ J. P., Justice of the Peace. 
 
 Wo. sa. 
 
 INDORSEMENT ON EXECUTION AGAINST JOINT DEBTORS, PART ONLT 
 SERVED WITH PROCESS. 
 
 Collect the within from the joint personal property of the 
 defendant, and the sole property of 0. D. because the defend- 
 ant E. F. has not been served with process. 
 
 J. P., Justice. 
 
186 THE constable's guide. 
 
 Wo. 53. 
 
 RENEWAL OF EXEO0TION INDORSED THEREON. 
 
 The within execution is hereby renewed this 14th day of 
 March, 1862. 
 
 J. P., Justice. 
 
 Wo. S4. 
 
 RENEWAL OF EXECnxiON — PART PAID — INDORSED. 
 
 The within execution is hereby renewed for $15 with 
 interest from this 14th day of March, 1862. 
 
 J. R., Justice of {he Peace. 
 
 Wo. es5. 
 
 INDORSEMENT BY CONSTABLE OF HIS LEVY. 
 
 By virtue of the within execution I have levied on ten 
 sheep, &c.,_this March 15th, 1862. 
 
 T. B., Constable. 
 
 Wo. SO 
 
 NOTICE OF SALE OF PROPERTY BY CONSTABLE. 
 
 By virtue of an (or, several) execution against C. D., issued 
 in justice's court, I have seized and taken (describe the 
 property) vehich I shall sell at pubhc vendue, to the highest 
 bidder, at the Town Hall, in the town of Bern, on the 22d 
 day of March, 1862, at ten o'clock in the forenoon. 
 
 Been, March 14, 1862. 
 
 T. B., Constable. 
 
THE constable's GUIDE. 187 
 
 constables bill of sale. 
 Justice's Coukt. 
 
 A. B. 
 
 agt [ 
 
 CD. I 
 
 Before J. P., Esq., Justice. 
 At a constable's sale at auction, on an execution issued in 
 the above action E. B. bought 15 merino sheep at $3 — $45. 
 
 T. B., Constable. 
 
 Wo. 5S. 
 
 plaintiff's indemnity bond to constable. 
 
 Know all men by these presents: That we, A. B. and 
 M. M. are held and firmly bound unto T. B., one of the 
 constables of the town of Bern, in the sum of one hundred 
 dollars, lawful money of the United States, to be paid to the 
 said T. B., or to his certain attorney or attorneys, executors, 
 administrators or assigns; for which payment well and 
 truly to be made, we bind ourselves, our and each of our 
 heirs, executors and administrators, jointly and severally, 
 firmly by these presents. 
 
 Sealed with our seals. Dated the 14th day of March, in 
 the year one thousand eight hundred and sixty-two. 
 
 Whereas, the above bounden A B., did obtain judgment 
 in the justice's court before J. P., Justice in the town of 
 Bern, against C. D., whereupon execution has been issued, 
 directed and delivered to the said T. B. requiring him, out 
 of the personal property of the said judgment debtor, to 
 satisfy the judgment aforesaid. And whereas, certain per- 
 sonal property that appears to belong to the said C. D., is 
 claimed by one, S. G. 
 
 Now, therefore, the condition of the above obligation is 
 such, that if the above bounden A. B. shall well and truly 
 
188 THE constable's guide. 
 
 . save, keep and bear harmless, and indemnify the said T. B., 
 and all and every person and persons aiding and assisting 
 him in the premises, of and from all harm, let, trouble, 
 damage, liability, costs, counsel fees, expenses, suits, actions, 
 judgments, special proceedings and executions, that shall or 
 may at any time arise, come, accrue, happen or be brought 
 against him, them, or any of them, as well for the levying 
 and making sale under and by virtue of such execution, of 
 all or any personal property, which he or they shall or may 
 judge to belong to the said judgment debtor, as well as in 
 lawfully entering any shop, store, building or other pre- 
 mises, for the taking of any such personal property, then 
 this obligation to be void, otherwise to remain in full force 
 and virtue. 
 
 A. B. Tl. s.] 
 M. M. [l. S.1 
 
 Sealed and delivered in , 
 
 the presence of 
 
 T. S. 
 
 OTo. tS9. 
 
 JUSTIFIFICATION OF SURETY — INDORSED. 
 
 County of Albany, ss. M. M., one of the subscribers to 
 the above bond being sworn, says, that he is a resident and 
 freeholder (or, householder) within this state, and worth 
 (double the sum specified in the above bond,) over all his debts 
 and liabilities, and exclusive of property exempt by law 
 
 from execution. 
 
 M. JiL 
 
 Sworn to before me, this ) 
 14th day of March, 18G2, \ 
 
 J. P., Justice of the Peace. 
 
THE constable's GUIDE. 189 
 
 is'o. eo. 
 
 constable's ketubn on executions. 
 
 No property (or, body) of defendant to be found in this 
 county. Or, 
 
 I have levied tlie debt (or, damages) and costs. Or, 
 
 For want of goods and oliattels of the defendant, I have 
 taken the body of tlie defendant and committed liim to tlie 
 jail of the county. Or, 
 
 I have levied $20 on the within execution, and for want 
 of further goods and chattels of the defendant, I have taken 
 the body of the defendant and committed him to jail. Or, 
 
 I have levied $15 on the within execution and no more 
 property, nor the body of the defendant can be found. Or, 
 
 I have levied on one wagon and harness which remain 
 in my hands unsold for want of buyers. 
 
 T. B., Constable. 
 
 sso. ei. 
 
 SU.MMONS TO REMOVE TENANT HOLDING OVER AFTER THE EX- 
 PIRATION or HIS TERM. 
 
 To 0. D. : 
 
 "Whereas, A. B. has made oath, and presented the same to 
 me, that on or about the 12th day of March, 1861, he 
 demised or leased unto you a certain house and lot {describe 
 the premises) for the term of one year from the 13th day 
 of March, 18G1, and that you or your assigns hold over and 
 continue in possession of the said premises after the expira- 
 tion of your term therein, without the permission of the 
 landlord : Therefore, the People of the State of New York 
 hereby summon and require you forthwith to remove from 
 the said premises, or show cause before me at my office in 
 the town of Bethlehem on the 15th day of March, 1862, 
 
190 THE constable's GUIDE. 
 
 at ten o'clock in the forenoon, why possession of the said 
 premises should not be delivered to the landlord. 
 "Witness my hand, this j 
 March 14, 1862,- f 
 
 J. P., Justice of the Peace. 
 
 JSo. 63. 
 
 SUMMONS TO TENANT HOLDING AFTEB NON-PAYMENT OF BENT. 
 
 To C. D. : 
 
 Whereas, A. B. has made oath before me that you are 
 justly indebted to him in the sum of fifty dollars due the 
 1st day of February, 1862, for rent of a house and lot be- 
 longing to the said A. B., and situate in the town of Bethle- 
 hem, in which you now reside ; that he has demanded from 
 you the said rent or possession of said premises, in due 
 form of law; and that default has been made in the pay- 
 ment of rent, pursuant to the agreement under which the 
 premises were let; and that you hold over and continue in 
 possession of the same without the permission of the land- 
 lord, after default in the payment of the rent as aforesaid, 
 and that satisfaction of the said rent cannot be obtained by 
 distress of any goods. Therefore you are hereby sum- 
 moned and required to remove from said premises, or show 
 cause before me, at my office, in the town of Bethlehem, 
 on the 14th day of March, 1862, at ten o'clock in the fore- 
 noon, why the said A. B. should not be put in full pos- 
 session thereof. 
 
 Witness my hand, this ) 
 llthday of March, 1862, f 
 
 J. P., Justice of the Peace. 
 
 PROOF OP SERVICE OF SUMMONS TO REMOVE. 
 
 Albany County, ss: W. S., of the town of Bethlehem, 
 
THE constable's GUIDE. 191 
 
 being duly sworn, says: that on the 11th day of March, 
 1862, he served the annexed summons upon C. D., the 
 tenant therein named by delivering to and leaving with 
 him a true copy thereof, at the same time showing him the 
 original (or, by leaving a copy thereof at the last or usual 
 place of residence of the said C. D., with a person of 
 mature age residing on the premises, the said C. D., being 
 absent from his last or usual place of residence, or, there 
 being no person of mature age residing on the premises, 
 and the said 0. D., being absent from his last or usual place 
 of residence, by afiixing a copy thereof upon a conspicuous 
 part of the said demised premises. 
 
 Sworn, &c. W. S. 
 
 Tfo. 64. 
 
 VENIRE WHEN THE TENANT MAKES A DEFENSE. 
 
 Albany County, ss: To any Constable of said county. 
 Greeting: Whereas, I, the undersigned, one of the justices 
 of the peace of said county, in order to form a jury to try 
 certain, matters in controversy between A. B., landlord, 
 and C. D., tenant, have, in due form, nominated E. F., &c. 
 (naming them), twelve reputable persons, qualified to serve 
 as jurors in courts of record : 
 
 You are, therefore, hereby commanded, in the name of 
 the People of the State of New York, to summon the 
 above named persons so nominated to appear before me, 
 at my office, in the town of Bethlehem, on the 14th day 
 of March, 1862, at ten o'clock in the forenoon, to try the 
 said matters in difference between the said parties. 
 
 J. P., Justice, &c. 
 
 Dated Bethlehem, March 12, 1862. 
 
 17 
 
192 THE constable's guide. 
 
 Wo. es. 
 
 constable's return to the venire. 
 
 I have personally served, in the town of Bethlehem, all 
 
 the persons nanaed for jurors in the within precept 
 
 T. B., Constable. 
 March 13, 1862. 
 
 Wo. ee. 
 
 warrant to remove — ^EXPIRATION OF TERM. 
 
 To any Constable of the County of Albany, Greeting- : 
 
 WhereaSf A. B. has made oath in writing, and presented 
 the same to me, that on or about the first day of February, 
 1861, he rented unto C. D. for "the term of one year, from 
 the first day of Maroh then next, the following described 
 'premises (deserTBe premises) and that he or his assigns hold 
 over and continue in possession of the same after the ex- 
 piration of his term therein, without the permission of the 
 landlord: Whereupon I issued a summons requiring the 
 said tenant forthwith to remove from the said premises, or , 
 show cauise before me, at a certain time now past, why the 
 possession of, the saii. premises should not be delivered to 
 the landlord;* and no sufficient cause having been shown 
 to the contrary, and I being satisfied by due proof, of the 
 service of the said summms,* do, therefore, in the name of 
 the Peojfle of^he State of !New 'i'fiT^, command you to 
 remove all persons- from the said premises, and put the 
 landlord into the full possession thereof. . : '' - 
 
 In witness whereof, I have subscpibed these presents, 
 this 14th day of March, in the year one thousand eight 
 
 hundred and sixty-two. / 
 
 ' J. P., Justice, Jbc. 
 
THE constable's GUIDE. 193 
 
 Wo. GV. 
 
 WAEEANT TO REMOVE — NON-PAYMENT OF BENT. 
 
 To any Constable of the County of Albany, Greeting: 
 
 Whereas, A. B. hath made oath in writing, and presented 
 the same to me, that C D., as tenant of him tl)e said A. B., 
 ■was justly indebted unto A. B. in the sum of one hundred 
 dollars and interest, from February 1, 1862, for the rent of 
 house and lot in the town of Bethlehem, that the said reut 
 had been demanded fr'om C. D., and that the said C. D. had 
 made default in the payment thereof, pursuant to the agree-, 
 ment under which the premises were held, and that the said 
 C. D. holds over and continues in possession of the same, 
 without the permission of the landlord, after default in the 
 payment of the rent as aforesaid. Whereupon I issued a 
 summons, requiring the tenant, and each and every person 
 in possession of the said premises, or claiming the posses- 
 sion thereof, forthwith to remove from the said premises, or 
 show cause before me, at a certain time now past, why the 
 possession of the said premises should not be delivered tg.. 
 the said landlcjfd;* and no good cause having been sll5wfi,~ 
 or any way appearing to the contrary, and due proof of the 
 service of such summons having been made to me,* there- 
 fore, in the name of the People of the State of New York, 
 you are commanded to remove all persons from the said 
 premises, and put the said A. B. into the full possession 
 thereof. 
 
 In witness whereof, I have subscribed these presents, this 
 14th day of March, in the year one thousand eight hundred 
 and sixty-two. 
 
 J. P., Justice, &e. 
 
1S)4 THE constable's GUIDE. 
 
 WAKtiANT AFTF.H VERDICT OF JURY AGAINST TENANT. 
 
 {Insert in either of the last two forms in place of the words 
 hetween the * * the following words :) 
 
 And whereas, the said C. D. duly and in due time filed an 
 affidavit with me, the undersigned, who issued said sum- 
 mons, denying the facts (or, some one of the facts) upon 
 which said summons was issued : And a jury having been 
 regularly nominated, summoned, balloted for and sworn, in 
 pursuance of the directions of the-statute in such case 
 made and provided, to determine the matters controverted 
 between the said parties ; and the said jury, after hearing 
 the proofs and allegations of the parties, and being kept 
 together by a proper officer duly sworn until they agreed 
 on their verdict, having found a verdict in favor of said 
 A. B. 
 
 TTo. es. 
 
 RETURN TO A WARRANT TO DISPOSSESS \eNANT. 
 
 Pursuant to the command of the within warrant, I have 
 this day put the landlord into the full possession of the 
 premises therein mentioned. Dated this 15th day of March, 
 1862. 
 
 T. B., Constable. 
 
 Wo. vo. 
 
 PRECEPT FOR A JITET TO REASSESS DAMAGES IN LATINS OtJT, 
 ALTERING OR DISCONTINtTINQ A HIGHWAT. 
 
 The People of the State of New York, to any one of the 
 constables of the town of Columbus, in the county of 
 Chenango, Greeting : Tou are hereby directed to summon 
 A. B., &c., (insert the names of all the jury,) to appear at 
 
THE constable's GUIDE. 195 
 
 the town clerk's office in the town of Columbus in said 
 county, on the 17th day of March, 1862, at ten o'clock in 
 the forenoon, to form a jury to reassess the damages accru- 
 ing by the laying out (or, altering, or, discontinuing) of a 
 highway in the said town of Columbus, by the highway 
 commissioners thereof, on the 17th day of January, 1862. 
 And hereof fail not at your peril. 
 
 J. P., Justice of the Peace. 
 
 PRECEPT FOR A JURY TO INQUIRE IKTO AN ENCROACHMENT. 
 
 Town of Dover, County of Dutchess, ss. To any Constable 
 of said town. Greeting: You are hereby commanded, in 
 the name of the People of the State of New York, to 
 summon twelve freeholders of said town, to meet on the 
 25th day of March, 1862, at nine o'clock in the forenoon, 
 at the office of the town clerk in the town house in said 
 town, to inquire whether any encroachment has been made, 
 and by whom^upon the highway in said town, leading from 
 the house of A. B. to C. D., where it runs along the lands 
 in the occupation of W. W. in said town. And give at least 
 three days' notice to the commissioners of highways of said 
 town, and to the said W. W. of the time and place at which 
 the said freeholders are to meet. Witness my hand, this 
 March 5, 1862. 
 
 X P., Justice, &c. 
 
 ■JSo. »*■. 
 
 WARRANT TO COLLECT COST OF AN INQUIRY CONCERNING AN 
 ENCROACHMENT. 
 
 The People of the State of Kew York to any Constable 
 of the town of Bethlehem, in the county of Alhaiiy, Greet- 
 ing : Whereas,' the commissioners of highways of the said 
 17* 
 
196 THE constable's guide. 
 
 town did, on the 11th day of April last, make, reduce, to 
 writing, and sign, an order for the removal of a certain 
 fence as an encroachment upon the highway, running through 
 (or, by) the lands, in said town, in the occupation of W. X., 
 (specifying the breadth of the road, and the extent and 
 place of the encroachment, according to the statute,) which 
 said encroachment having been denied by said occupant, a 
 jury of twelve freeholders was, upon the application of the 
 said commissioners, {or, T. J., one of said commissioners,) 
 by a precept issued by me, duly summoned to inquire into 
 the premises, and the said jury having been duly assembled 
 and sworn, after due notice to the said occupant, as required 
 by law, and having heard the proofs and allegations pro- 
 duced and submitted on the 25th day of July, 1861, the 
 said jury made and subscribed a certificate in writing, that 
 an en'croachment had been made by W. X., the present (or, 
 former) occupant of said land, (stating the particulars 
 thereof) And whereas, the costs of said inquiry amounts 
 to the sum of ten dollars, which remains unpaid. Therefore, 
 you are commanded to levy the said costs of the goods and 
 chattels of the said W. X., the occupant of the said land 
 through {or, by) which the said highway runs, and bring 
 the same before me without delay, 
 
 G-iven under my hand and seal, this 30th day of July, in 
 
 the year 18G1. 
 
 J. R., [l. S.J 
 Justice of the JPeace, 
 
 Wo. lya. 
 
 SUMMONS FOR NOT WORKING HIGnWATS. 
 
 Town of Cicero, County of Onondaga, ss. To any Consta- 
 ble of said town, G-reeting: Whereas, complaint has been 
 made to me, the undersigned, one of the justices of the said 
 town, by A. B., overseer of highways for road district num- 
 
THE constable's guide. 197 
 
 ber two, in said town, that C. D., who resides in said dis- 
 trict, and is assessed for highway labor in said district, and 
 has been duly notified to perform such work, has refused 
 and neglected to appear in pursuance of such notice, either 
 in person or by an able-bodied substitute, and perform such 
 labor (or, specify any other failure to comply with the 
 statute). You are therefore commanded, in the name of 
 the People of the State of New York, to summon the said 
 0. D. forthwith to appear before me, at my ofi&ce in said 
 town, to show cause why he should not be fined according 
 to law for such refusal {or, neglect), as in said complaint is 
 alleged against him. 
 
 March 17, 1862. J. E., Justice, &c. 
 
 Wo. 174. 
 RETURN OF SERVICE OP SUMMONS. 
 
 I have duly and personally served the within summons 
 on the within named C. D., at the town of Cicero, this 
 March 17, 1862. 
 
 T. B., Constable. 
 Or, 
 
 I have duly served the within summons by leaving a copy 
 thereof at the personal abode of the said C. D., in the town 
 of Cicero, this March 17, 1862. 
 
 T. B., Constable. 
 
 Wo. VS. 
 
 WARRANT TO COLLECT A FINE FOR NOT WORKING. 
 
 Town of Cicero, County of Onondaga, ss. To any Con- 
 stable of said town. Greeting: Whereas, complaint was 
 made to me, one of the justices of the peace of said town, 
 by A. B., overseer of highways for road district number 
 two, in said town, that C. D., &c. (as in complaint.) And, 
 
198 THE COSTSTABLe's GUIDE. 
 
 whereas, I thereupon issued my summons, requiring the 
 said C. D,, forthwith to appear before me, at my office, in 
 said town, to show cause why he should not be fined accord- 
 ing to law for such refusal (or, neglect). And whereas, the 
 said summons has been duly returned, served by T. B., eon- 
 stable, and the said C. D. has not appeared before me (or, 
 having appeared) has not shown sufficient cause to the con- 
 trary, I have imposed on him a fine of two dollars for his 
 offense, complained of as aforesaid, and ascertained and 
 adjudged the costs of the proceedings on the complaint to 
 be two dollars. 
 
 Now, therefore, you are hereby commanded, in the name 
 of the People of the State of New York, to levy the said 
 fine, together with two dollars, the costs and charges afore- 
 said, of the goods and chattels of the said C. D., and bring 
 the moneys which you shall collect before me, with this 
 warrant. 
 
 Given under my hand and seal this 17th day of March, 
 
 1862. 
 
 J. P., [l. S.J 
 
 Justice; &c. 
 
 Wo. lye. 
 
 WARRANT TO ARREST A VAGRANT. 
 
 County of Washington, ss. To any Constable of said 
 county, Greeting : Whereas, A. B. has this day made com- 
 plaint on oath, before me, the under named justice of the 
 peace, that B. P. is now in the town of Cambridge, and is 
 an idle person, not having visible means to maintain him- 
 self, and living without employment, and is believed to be 
 a vagrant. 
 
 Tou are, therefore, hereby commanded, in the name of 
 the People of the State of New York, forthwith to arrest 
 the said E. P., and bring him before me at my house, in 
 
THE constable's guide. 199 
 
 said town of Cambridge, to answer said complaint, and to 
 be otherwise dealt with in the premises as the law requires. 
 
 J. P., JiMstice, &c. 
 March 17, 1862. 
 
 Wo. W. 
 
 WAEKANT TO COMMIT A VAGRANT. 
 
 County of Washington, ss. To any Constable of said 
 county. Greeting : Whereas, E. F. has been this day duly 
 convicted before me, the undersigned, justice of the peace 
 of the town of Cambridge, in said county, of being a vagrant; 
 and inasmuch as it appeared to me that said E. P. is not a 
 notorious offender, and is a proper subject of relief {or, is an 
 improper person to be sent to the poor house), I did, upon 
 such conviction, adjudge that said E. F. be committed, as 
 hereinafter expressed. You are, therefore, hereby com- 
 manded, in the name of the People of the State of New 
 York, to convey the said E. F. to the county poor house 
 (or, alms house, or, town poor house), the keeper whereof is 
 hereby required to keep the said E. F. therein at hard labor 
 for the term of forty days ; (or, to convey the said E. F. to 
 the common jail of said county, the keeper whereof is re- 
 quired to detain the said E. F. in safe custody therein for 
 the term of thirty days, and to be kept for the first ten days 
 on bread and water only.) 
 
 Given under my hand and seal, at Cambridge, this 17th 
 day of March, 1862. 
 
 J. P., Justice, &c. 
 
 TSo. VS. 
 
 WARRANT TO COLLECT A PENALTY FROM A PEDDLBK. 
 
 County of Delaware, ss. To any Constable of said county, 
 Greeting : Whereas, E. P. has been this day duly convicted 
 before me, the undersigned, a justice of the peace of the 
 
200 THE constable's guide. 
 
 town of Dellii, of trading as a hawker or peddler, without 
 license, for that purpose had and obtained, for whioh.;»fi6Bftse 
 he was adjudged by me to forfeit the sum optwenty-fiVe 
 dollars ; and whereas, the costs of his cparnction were 
 certained and fixed by me at foup^tSllars, which forfeittJ^e 
 and costs the said E. B\has,.»otpaid : Now, therefore, jpn 
 are hereby comnjarrfed, in the name of the People of the 
 State of Ne>\<iork to cause the said twenty-five dolfj^s 
 forfeit as aforesaid, together with said four dollars cosm, to 
 be forthwith levied by distress and sale of the goods, W'ares 
 and merchandise of the said B. F.^ and to bring theiDiouey ' 
 so collected by you before me at my office, in the /bwn of-*^ 
 Delhi, in said county. 
 
 Witness my hand, this ) 
 17th, day of March, 1862, ] 
 
 J. P., Justice, &c. 
 
 No. V&. 
 
 WARKANT TO AEKEST PUTATIVE- *'4;ffiEI^' , 
 
 County of Saratoga, ss. To any Qefpistablej^^aid county, 
 Q-reeting: Whereas, A. B., of ^Je'iow* J#Charlotte, upon 
 examination on oath before mefth.e'upler named justice of 
 the peace of said'county;^*thi>dayybad, did declare that C. 
 D. is the father of the bastarcUtihild, of which she was de- 
 livered on the secoi»l'inst»nt {or, of the child of which she 
 I is pregnant, arid "whicli is likely to be born a bastard), and 
 'which is cl^^^^te {or, hkely to become chargeable) to said 
 county; and whereas, N. M., one of the overseers of the 
 poor of said town {or, one of the superintendents of the 
 poor of said county, in order to indemnify^said town {or, said 
 county), in the premises has applied to me to inquire into 
 the facts and circumstances of the case, and to issue my 
 warrant to apprehend the said C. D. : Ton are, therefore 
 hereby commanded, in the name of the People of the State 
 of New York forthwith to apprehend the said C. D., and 
 bring him 'before me at my office, in the said town of Char- 
 
THE constable's GUIDE. 201 
 
 lotte, for the purpose of having an adjudication respecting 
 the filiation of such bastard child (or, of such child likely to 
 to be born a bastard.) 
 Witness my hand, this ) 
 March 17, 1862, f 
 
 J. P., Justice, &c. 
 
 Wo. SO. 
 
 INDOESEMENT ON WAEBAKT IP ARREST IS TO BE IN ANOTHER 
 COUNTY. 
 
 Let the within named C. D. be held to bail in the sura of 
 two hundred dollars. 
 March 17, 1862. 
 
 INDORSEMENT ON WARRANT BY A JUSTICE IN A FOREIGN COUNTY. 
 
 County of Delaware, ss. The within warrant, with the 
 indorsement made thereon by the justice by whom it was 
 issued, of the sum required to be put in the bond, having 
 been presented to the undersigned, a justice of the peace of 
 the county of Delaware, and proof having been made of the 
 handwriting of the justice who issued the warrant, the arrest 
 of the said C. D. is hereby authorized, if he can be found 
 within the county of Delaware. Indorsed at the town of 
 Delhi, in the county of Delaware, this 18th day of March, 
 1862. J. P., Justice. 
 
 Wo. 83. 
 
 CERTIFICATE BY THE JUSTICE WHO TAKES THE BOND. 
 
 Delaware County, ss. I certify that the within named 
 C. D. was brought before me, one of the justices of the peace 
 of the county of Delaware, by virtue of the within warrant, 
 and w,is by me discharged from arrest, upon his executing 
 a bond pursuant to statute. J. P., Justice, &c. 
 
 Delhi, March 18, 1862. 
 
202 THE constable's guide. 
 
 Wo. 83. 
 
 RETURN TO WARRANT TO ARREST PUTATIVE TATHER. 
 
 By virtue of the within I did arrest and take into custody 
 the withiu named C. D., March 17, 1862. 
 
 T. B., ConMable. 
 Or, 
 By virtue of the within warrant, and the several indorse- 
 ments thereon, I did arrest the within named C. D., at 
 Delhi, in the county of Delaware, and did take the said 
 C. D., before J. P., one of the justices of the peace of 
 said county of Delaware, and the said 0. D. was then and 
 there released upon his executing the accompanying bond. 
 
 T. B., ConsidbU. 
 March 18, 1862. 
 
 No. 84, 
 
 VENIRE AS TO WHETHER A PERSON IS AN HABITUAI, DRUNKARD. 
 
 Town of Bern, Albany County, ss. To any Constable of 
 the said County, G-reetihg : The People of the State of New 
 York command you to summon twelve good and lawful 
 men, in the town of Bern, qualified to serve as jurors, and 
 not exempt from serving on juries in courts of record, and 
 who are in no wise of kin to C. D., to appear before me, 
 one of the justices of the peace of the said town, at my office 
 in the said town, on the twentieth day.pf March, 1862, at 
 nine o'clock in the forenoon, to make a jury for trial of the 
 fact .whether C. D. of said town is an habitual drunkard, he 
 having been designated as such by the overseers of the 
 poor of said town. And you are also required to make a 
 list of the persons summoned, which you will certify and 
 annex to this venire, and make return thereof to me. 
 
 Witness my hand, the ( 
 17th day of March, 1862, f 
 
 J. P., Justice of the Pecux. 
 
THE constable's GUIDE. 203 
 
 Wo. SB. 
 
 NOTICE OF SALE ON FORECLOSURE OF CHATTEL MORTGAGE. 
 
 Take notice that by virtue of a chattel mortgage, execut- 
 ed by A. B. to G. D., dated December 3, 1861, and filed in 
 the ofiSce of the town clerk in Schodack, on said 3d day of 
 December, and upon which default in payment has been 
 made, I shall sell the property therein mentioned and de- 
 scribed as follows : (set forth names of the articles), at public 
 auction to the highest bidder, at the town house in said 
 town, on the 25th day of March, 1862, at 12 o'clock noon. 
 
 C. D., Mortgagee. 
 
 March 15, 1862. by T. B., Constable. 
 
 WARRANT TO SEARCH FOR BOOKS AND PAPERS ON THE CANAL, 
 AND TO PUT PARTY IN POSSESSION. 
 
 County of Albany, Town of Waiervliet, ss. Whereas, 
 complaint, ou oath, has been made to me, one of the jus- 
 tidbs of the peace of said town, by A. B., who has been 
 appointed lock-tender on lock No. 5, on the Erie canal, in 
 said town, that C. D., who was last year the lock-tender of 
 said canal lock, holds over and continues in possession of the 
 ofiBce and books and papers, and matters or things, belonging 
 to the canal in connection with said lock, and refuses to admit 
 the said A. B. into the possession of the said look, office and 
 premises, and to the possession of the books and papers to 
 which he is entitled to possession by virtue of the said 
 appointment ; and it appearing to me that the proper notice, 
 jigned by M. M., the acting canal commissioner has been 
 served upon the said C. D., requiring him to surrender tho 
 possession of the said premises, &c., which requisition the 
 said 0. D. refuses to obey. You are, therefore, hereby com- 
 manded, in the name of the People of the State of New 
 18 
 
204 
 
 York, forthwith, in the daytime, with such assistance aa 
 may be necessary, to enter upon the premises so occupied, 
 and remove therefrom all persons found in possession 
 thereof, and to take into your possession and custody all 
 books, papers, matters and things there found belonging to 
 the canals, and to deliver the same to M. M., the acting 
 canal commissioner, or his authorized agent, and return to 
 me the manner in which you have executed this precept. 
 
 Witness my hand and seal, ( 
 this 10th day of April, 1861, ( ' 
 J. P., fL. s.] 
 
 Justice, (fee. 
 
 Wo. sv. 
 
 RETURN TO ABOVE WARRANT. 
 
 By virtuj of the within precept, I this day entered upon 
 the premises therein referred to, removed therefrom all per- 
 sons found in possession, took into my custody all the books, 
 papers, matters and things belonging to the canal, and deli- 
 vered the same to R. E. the authorized agent of the said M. 
 M., the acting canal commissioner. April 12th, 1861. 
 
 T. B., ConsloMe. 
 
 Wo. S8. 
 
 RETURN TO SUPERVISOR'S SUMMONS. 
 
 Personally served, by reading the within to said D. D. 
 
 therein named, and at the same time giving him a copy of 
 
 the within summons, at the town of Schodack, this March 
 
 18, 1862. 
 
 » T. B., Constable. 
 
THE constable's GUIDE. 205 
 
 ASSAULT AND BATTERY WARKANT. 
 
 Rensselaer County, Town of Schodack, ss. To any Consta- 
 ble of said county, Greeting : Whereas, complaint has this 
 day been made before me, J. P., one of the justices of the 
 peace in and for said county, by A. B., that one 0. D., ou 
 the 16th day of March, 1862, at the town of Scliodack in 
 said county, with force and arms did grievously assault and 
 beat the said A. B., and having examined the said complaint 
 on oath touching the said offense and accusation, and it 
 appearing to me from such examination, that such offense 
 has been committed, you are therefore hereby com- 
 manded, in the name of the People of the State of New 
 York, forthwith to apprehend the said C. D., and bring him 
 before the said justice, co be dealt with according to law. 
 
 Witness my hand at Schodack, in said county, this 17th 
 day of March, 1862, 
 
 J. P., Justice of the Peace. 
 
 CRIMINAL WAHKANT. 
 
 Rensselaer County, Town of Nassau, ss. To the Sheriff or 
 any Constable of said county, Greeting : Whereas, complaint 
 on the oath of A. B., has been made before the undersigned, 
 justice of the peace of said town, that on the 17th day of 
 March, 1860, at Nassau, in said county against C. D. that he 
 (insert the crime charged.) 
 
 These are, therefore, in the name of the People of the 
 State of New York, to command you forthwith to take the 
 said C. D., and to bring him before me, at my office in said 
 town, to answer unto the matters contained in said com- 
 plaint, and to be further de^lt with according to law. Dated 
 at said town, the 17th of March, 1862. 
 
 J. P., Justice of Vie Peace. 
 
206 THE constable's guide. 
 
 Wo. Ol. 
 
 RETURN TO WARRANT. 
 
 By virtue of the witliin warrant, I have taken and have 
 in my custody, the within described C. D., March 18th, 
 1862. 
 
 T. B.., Constable. 
 
 RETURN TO WARRANT — ^PART NOT FOUND. 
 
 By virtue of the within warrant, I have taken and have 
 in my custody the within named C. D., but the within 
 named E. R, cannot be found. March 18th, 1862. 
 
 T. B., ConsiaUe. 
 
 Wo. 93. 
 
 RETURN TO WARRANT — JUSTICE ABSENT. 
 
 (Add to either of the last two the foUowing :) And I brouglit 
 the said 0. D., to the office of the said J. P., the magistrate 
 who issued the within warrant, and before whom it was 
 made returnable ; but the said J. P. was then absent there- 
 from and could not be found to proceed upon the said war- 
 rant, (or, was sick and unable to proceed thereon, or, had 
 ceased to be a magistrate, the term of office for which he 
 was elected having expired ; or, the said J. P. had resigned, 
 or, removed from the county.) 
 
 T B., Constable. 
 
 RETURN OP CONSTABLE TO COUNTY CLERK, WHERJ; BAIL IS TAKEN 
 IN ANOTHER COUNTT. 
 
 By virtue of the within warrant and the indorsement 
 thereon, I arrested the witliin named C. D., in the county of 
 
THE constable's guide. 207 
 
 Delaware, and took him before J. P., the county judge of 
 the said county of Delaware, who admitted the said 0. D. to 
 bail, the recognizance which was then taken and approved 
 by said judge, being herewith returned. 
 
 T. B., Constahle. 
 To S. C, clerk of the county of Schenectady. 
 
 OOMMITJIENT FOR FURTHER EXAMINATION. 
 
 Rensselaer County, Town of Lansinghurgh, ss. To the 
 Keeper of the common jail of the said county. Greeting : You 
 will receive and safely keep in" your custody, for further 
 examination, C. D., who is charged before me, a justice of 
 the peace of said county, upon the oath of A. B., with (insert 
 the charge.) 
 
 Dated March 18th, 1862. 
 
 J. P., Justice of the Peace. 
 
 No. »e. 
 
 COMMITMENT TO FINAL BAIL, OR TO BE TRIED BY SPECIAL 
 SESSIONS. 
 
 County of Rensselaer, ss. To any Constable of the said 
 county, and to the Keeper of the common jail of said 
 county. Greeting: 
 
 Whereas, 0. D. has this day been brought before me, J. 
 P., one of the justices of the peace of the said county, 
 charged, on the oath of A. B., with (insert the offense), 
 and the said C. D. having been examined by me, and re- 
 quired to give bail, and having neglected so to do (or, the 
 said 0. D. having demanded that he be.tried by a court of 
 Special Sessions), you are, therefore, commanded, in the 
 name of the People of the State of New York, forthwith 
 to convey the said U. D. and commit him to the custody of 
 18* 
 
208 THE constable's guide. 
 
 the keeper of the common jail of said county, and you the 
 said keeper are to receive the said C. D. into your custody 
 in the said jail, and him there safely keep, until he shall be 
 required to be brought before a Court of Special Sessions 
 for trial, or he be otherwise discharged according to law. 
 
 Witness my hand and ) 
 seal, this March 17, 1862, f 
 
 J. P., Justice, &c. [l. S.J 
 
 WARRANT TO BRING UP PRISONER FOR TRIAL. 
 
 Albany County, ss. To any Constable of said county, 
 and to the Keeper of the common jail of said county, Greefc- 
 ing : You are hereby commanded to bring forthwith before 
 me, the undersigned, a justice of the peace of said county, 
 at my ofiSoe, where I am now holding a Court of Special 
 Sessions, in the town of Watervliet, C. D., in your custody 
 and detained in said jail by virtue of a commitment by me 
 signed, and bearing date March 17, 1862, to the end that 
 he may be tried for the offense charged against him. 
 
 Given under my hand, this March 18, 1862. 
 
 J. P., Justice, &c. 
 
 TSo. »8. 
 
 VENIRE FOR SPECIAL SESSIONS. 
 
 State of New Yorle. Albany County, ss. To any Constable 
 of the said county, G-reeting : You are hereby command- 
 ed, in the name of the People of the State of New 
 York, to summon twelve good and lawful men of the 
 town of Watervliet, qualified to serve as jurors, and not 
 exempt from such service by law ; and who shall be in no 
 wise of kin either to A. B., the complainant or C. D., de- 
 fendant, to be and appear before me the under named jus- 
 
THE constable's guide. 209 
 
 tioe of the peace of said county, forming a Court of Special 
 Sessions, on the 18th day of March, 1862, at nine o'clock 
 ill tile forenoon, at my office in said town, in said county, 
 to make a jury for the trial of an issue of traverse, between 
 the said people and the said C. D., for the alleged offense 
 of (state offense cliarged,) and have you then and there a 
 list of the jurors you shall so summon, and this precept. 
 Given under my hand, the ITth day of March, 1862. 
 J. P., Justice of the Peace. 
 
 TSo. »». 
 
 RETURN TO THE VENIRE. 
 
 By virtue of the within precept, I have personally sum- 
 moned, as jurors, the following named persons (insert 
 
 names). 
 
 T. B., Constable. 
 March 18, 1862. 
 
 Wo. lOO. 
 
 SUBPCENA FOE SPECIAL SESSIONS. 
 
 State of New Yorh, Albany County, ss. To G. H. and 
 J. K., Greeting : In the name of the People of the 
 State of New York, you are hereby commanded to 
 appear before the undersigned, now holding a court of 
 special sessions, at his office, in the town of Watervliet, in 
 said county, on the 18th day of March, 1862, at nine 
 o'clock in the forenoon (or, forthwith,) to give evidence in a 
 certain matter between the People of the State of New 
 York, and G. D., on the part of the said C. D. (or, of the 
 People). Hereof fail not at your peril. 
 
 Witness my hand, this ) 
 17th day of March, 1862, f 
 
 J. P., Justice of the Peace. 
 
210 THE COKSTABLB'S GUIDE, 
 
 2So. lOl. 
 
 RETURN TO SERVICE OF SUBPCENA. 
 
 Personally served by reading the same to the within 
 named G. H., at Watervliet, this March 17, 1862. 
 
 T. B., Constable. 
 
 Wo. 103. 
 
 WARRANT or COMMITMENT ON CONVICTION, BT SPECIAL SESSIONS. 
 
 Albany County, Town of Watervliet, ss. To any Consta- 
 ble of said county, and to the Keeper of the penitentiary 
 of said county, Grreeting: Whereas, at a court of special 
 sessions of the peace, •held, this day in the town of Water- 
 vliet, in the county aforesaid, before the undersigned, one 
 of the justices of the peace of the town of Watervliet, 
 for the trial of 0. D., charged on the oath of A. B., 
 before the undersigned, with the alleged offense of (state 
 what), at the town of Watervliet, in said county, and 
 the said C. D. was duly convicted of the said ofifense. And 
 whereas, upon such conviction, the said court did adjudge 
 and determine that the Said C. D. should be confined at 
 hard labor for the space of six months in said penitentiary. 
 
 These are therefore to command you, the said constable, 
 forthwith to convey and deliver the said C. D. to the said 
 keeper. And you, the said keeper, are hereby commanded 
 to receive the said C. D. into your custody, in the said 
 penitentiary, and him there safely keep until the expiration 
 of the said term, or he be thence discharged in due course 
 of law. 
 
 G-ivea under my hand, at the said town of Watervliet, 
 this 18th day of March, 18G2. 
 
 J. P., Justice of the Peace. 
 
THE constable's GUIDE. 211 
 
 CRIMINAL StIBPOENA. 
 
 State of NeM) Yor\ Albany County, ss. To G. H. and 
 T. D., Greeting: In the name of the People of the State of 
 New York, you are hereby commanded to appear before 
 the undersigned, at his ofiSoe, in the town of Watervliet, in 
 said county, on the 18th day of March, 1862, at nine o'clock 
 in the forenoon, (or, forthwith,) to give evidence in a certain 
 matter between the People of the State of New York, and 
 C. D. on the part of the said 0. D., {or, of the People). 
 Hereof fail not at your peril. 
 
 Witness my hand, this | 
 17 th day of March, 1862, ( 
 
 J. P., Justice of the Peace. 
 
 Wo. X04,. 
 
 SEARCH WABKANT. 
 
 State of New York, Rensselaer County, ss. To any Con- 
 stable of the town of Nassau, in the County aforesaid, 
 Greeting: Whereas, complaint on oath has been made to 
 me, one of the justices of the peace of the said county, 
 by A. B., of Greenbush, in the county aforesaid, that certain 
 personal property, viz. : (describe the articles) has lately 
 been stolen or embezzled out of the dwelling-house of the 
 said A. B., in Greenbush, in the said county, by some person 
 or persons to him unknown, and that he suspects that the 
 said property is concealed in the (state what building), in 
 the town of Nassau, in the said county : 
 
 Therefore, the People of the State of New York, com- 
 mand you to search the place where the said property is 
 suspected to be concealed, in the daytime, and that you 
 bring the same before me. 
 
 Given under my hand, the 18th day of March, 1862. 
 
 J. P., Justice of the Peace. 
 
212 THE constable's gtjidb. 
 
 RETURN TO SEARCH WARRANT. 
 
 By virtue of the within precept, I entered the premises 
 therein described and seized, and tools; into my possession 
 all of the property therein described, (or, the following pro- 
 perty,) (describe it,) but the rest of said property could not 
 be found. 
 
 March 20, 1862. 
 
 T. B., Constable. 
 
 Wo. 1 OS. 
 
 WARRANT FOR GRAND OR PETIT LARCENT. 
 
 County of Greene, ss. To any Constable of the said 
 county. Greeting: Whereas, A. B. has made complaint, 
 upon oath, before me, the undersigned, one of the justices 
 of the peace of said county, that, on the 18th day of March, 
 1862, certain personal property belonging to the said A. B., 
 described as follows : (insert description) of the value of 
 twelve (or, sixty) dollars or upwards was feloniously taken 
 and stolen from his barn or dwelling-house, in the town of 
 Athens, in said county ; and he suspects that 0. D. stole and 
 feloniously took the said property. 
 
 These are, therefore, (and, as in No. 90 to the end.) 
 
 No. lOT. 
 
 INDORSING A WARRANT IN ANOTHER CODNTT. 
 
 Columbia County, ss. Proof upon oath (or, affirmation) 
 having been made before me, P. J., one of the justices of the 
 peace, in and for the said county of Columbia, that tlie name 
 of J. P. purporting to be subscribed to the within precept, 
 is the handwriting of the said J. P., a justice of the peace, 
 of the county of Albany, as within mentioned, I hereby 
 authorize T. B. who brings this warrant to me, or any other 
 
THE COIS^STABLe's GUIDE. 213 
 
 officer to whom the same is directed, to execute the same 
 within the county of Columbia. 
 
 March 19, 1862. 
 
 P. J., Justice, (£c. 
 
 PEACE WARRANT. 
 
 County of Ohauimiqua, Town of Wesifield, ss. To any 
 Constable of said county. Greeting: "Wliereas, A. B., this 
 day made complaint upon oath, {or, affirmation) before me, 
 the undersigned, one of the justices of the peace of said 
 town, that 0. D. did, on the 19th day of March, 18G2, 
 threaten to beat and wound (or kill) him, the said A. B. 
 and the said A. B. has asked surety of the peace : Therefore, 
 you are hereby commanded in the name of the People of 
 the State of New York, forthwith to apprehend the said 
 C. D. and bring him before me, at my office, in said town of 
 Westfield, to be dealt with according to law. 
 
 Given under my hand, this 20th day of March, 1862. 
 
 J. P., Justice, (&C. 
 
 Wo. lOO. 
 
 WARRANT TO ARREST A DISORDERLY PERSON. 
 
 Albany County, ss. To any Constable of said county, 
 Greeting : Whereas, a complaint has this day been made 
 under oath before me, one of the justices of the peace of 
 said county, that C. D., of the town of Bern in said county, 
 is a disorderly person, within the intent and meaning of the 
 statute in such case made and provided, for that ( here insert 
 charge) : These are, therefore, in the name of the People of 
 the State of Kew York, to command you forthwith to ap- 
 prehend the said C. D., and bring him before me, at my 
 
214 THE constable's guide. 
 
 oiEce in the town of Bern, for examination as a disorderly 
 person. 
 
 Witness my hand, ) 
 this March 20, 1862, j 
 
 J. P., Justice, &c. 
 
 ^■WARRANT TO COMMIT A DISORDERLY PERSON. 
 
 County of Herldmer, ss. To any Constable of said county, 
 and to the Keeper of the common jail of said county, Greets 
 ing: Whereas, 0. D., was this day convicted, before me, 
 the undersigned, one of the justices of the peace for said 
 county, of being a disorderly person : And, whereas, I did 
 require the said 0. D., upon such conviction, to enter into a 
 recognizance, with two sufficient suretie.s, severally in the 
 sum of five hundred dollars, for the good behavior of the 
 said 0. D. for the space of one year: And, whereas, the 
 said C. D. has neglected and failed to find such sureties and 
 to enter into such recognizance as was by me required, and 
 a record of the conviction of the said C. D. having been 
 made up and signed and filed by me in the county clerk's 
 ofilce of said county : Tou, the said constable, are hereby 
 commanded forthwith to convey and deliver the said C. D. 
 into the custody of the keeper of said jail ; and you, the 
 keeper of the said jail, are hereby required to receive the 
 said C. D. into your custody in the said jail and him safely 
 keep therein until he shall find the proper sureties, or be dis- 
 charged according to law. 
 
 Witness my hand, ) 
 
 this March 21, 1862, . 
 
 i. p., Justice, die. 
 
THE constable's GUIDE. 215 
 
 Wo. Xll. 
 
 WARRANT TO SEIZE GOODS FORFEITED BY TRADING ON SUNDAY. 
 
 County of Bensselaer, Town of HoosUk, ss. To any Con- 
 stable of said county, Greeting : "Whereas, C. D. has been 
 this day duly convicted before me, one of the justices of 
 the peace of said county, of exposing for sale, and offering 
 to sell on the first day of the week, called Sunday, the fol- 
 lowing goods, wares and merchandise (name them), con- 
 trary to tho provisions of the statute in such case made and 
 provided : And, whereas, it was also adjudged by me that 
 the said C. D. had forfeited to the use of the poor, the above 
 mentioned articles so exposed for sale, and the cost of the 
 proceeding herein having been fixed by me at three dollars, 
 and a record of such conviction having been made up and 
 signed by me : You are hereby commanded and required to 
 seize and take into your possession each and all of the said 
 articles so exposed for sale, and to sell the same at public 
 auction, after having given notice of the time and place of 
 such sale, and bring the money arising from such sale before 
 me at my ofiEice in said town, without delay. 
 
 Given under my hand, this March 21, 1862. 
 
 J. P., Justice, &C. 
 
 Wo. 1X3. 
 
 RETURN TO ATTACHMENT AGAINST A WITNESS. 
 
 By virtue of the within writ, I have arrested the within 
 named A. B., as I am within commanded, and have him 
 now here before the court. 
 
 R. M., Constable. 
 
 Dated May 3, 1862. 
 
 19 
 
216 THE constable's guide. 
 
 No. X13. 
 
 summons to a constable to attend a court of eecobd. 
 
 Office of Sheriff of Albany County. 
 To E. P., Esq., 
 
 Constable of the Town of Bern : 
 Take notice that you are hereby summoned to attend, as 
 a constable, the sitting of the Circuit Court (or, Court of 
 Oyer and Terminer), to be held at the City Hall, in the city 
 of Albany, to commence on the 19th day of May,_1862, at 
 ten o'clock in the forenoon. 
 
 J- B. P., Sheriff. 
 
 Albany, May 3, 1862. 
 
 JSo. XI 4. 
 
 certificate of attendance of constables. 
 
 Supreme Court, Clerk's Office, 
 Albany County. 
 I hereby certify that the following named persons have 
 attended the sittings of the Circuit Court (or. Court of Oyer 
 and Terminer) held in and for said county; in the City Hall, 
 in the city of Albany, on the days herein specified. 
 A. B. on the 3d, 4th, 5th, 6th, &e., of March. 
 C. D. on the 3d, 4th, 5th, 6th, &c., of March. 
 
 S. A. W., Albany County Clerk. 
 Albany, May 3, 1862. 
 
INDEX 
 
 FASB. 
 
 Actions in justices' courts commenced, how, 32 
 
 Affidavit for recovery of personal property, what, 56 
 
 Indorsement on, 51 
 
 Affidavit in replevin — form, 115 
 
 Form of indorsement on, 116 
 
 Affeat, persons in, arrested without warrant, 124 
 
 Duty of constable in, 121 
 
 Agent, may be served with summons, wlien, 34 
 
 Albany city, constables in, how elected and appointed, . . 16 
 
 Ambassadoes privileged from arrest, 45 
 
 Amendment to bond on appeal, 94 
 
 Appeal stays execution, when 94 
 
 Appointment of constables, form of, by justices, 161 
 
 Aerbst, how made in civil actions, 38 
 
 Who privileged from, in civil actions, 41-45 
 
 Constable privileged from, 26 
 
 How made and what is, 132 
 
 May break open doors to, when 133 
 
 What force may be used on, 134 
 
 After arrest, prisoner* taken, when 135, 136 
 
 On execution, when, 85 
 
 Assault and battery, form of warrant, 204 
 
 Assault, person committing, arrested without warrant,. . . 126 
 
 Duty of constable in, 128 
 
 Attachments, kinds of, in justices' courts, 48 
 
 Executed, when and how 49 
 
218 
 
 PAGB. 
 
 Attachments, what to be done with goods under, 50 
 
 Form of, 170 
 
 Certificate on copy, nX 
 
 Receipt for property, ill 
 
 Eeturn to, 114. 
 
 For witness, form, 182 
 
 Of witness, form of return to 214 
 
 Against witness, issue when, 63 
 
 Costs in, against a witness, 6i 
 
 Attached property only, sold on execution, when, 83 
 
 Attorneys, when privileged from arrest 44 
 
 Bail, prisoner talcen before magistrate to give, 137 
 
 If not found, trial by special sessions, when, 137 
 
 Ballots, with too many names not canvassed, 14 
 
 Bastardy cases, proceedings in, ,, 108 
 
 Beggars, to be arrested, I04 
 
 Bond of Constable to be given, 17 
 
 To be approved, 17 
 
 Contents of, 17 
 
 To be filed when, 18 
 
 Liability of sureties on, 18 
 
 Complaint m suits on 19 
 
 To be filed in town cleric's office, 11 
 
 Form for, given by defendant, 172 
 
 Approval of surely, 174 
 
 Given by third party, 173 
 
 Qualification of surety, 174 
 
 ■ Given by putative father 109 
 
 Of father given to the justice Ill 
 
 Of defendant under attachment, 51 
 
 Of third party under attachment, 51 
 
 How executed, 54 
 
 Form indemnifying constable, 187 
 
 Canals, certain officers of, exempt from jury duty, 68 
 
 Certificate of attendance of constables, form of, 215 
 
 Challenge to jurors, what is, 65 
 
 Chattel mortgage, notice of sale under 202 
 
INDEX. 2 1 9 
 
 PAGE. 
 
 Chattel Mortgage, constable to foreclose, when, 117 
 
 Chillken, idle and truant to be committed, 99 
 
 Cities and Villages, constables in, 12, 14 
 
 Collectors and clerks on canal, exempt from jury, 68 
 
 COLONLAL Assembly provided to elect constables, 11 
 
 Color, persons of, may be elected constable, 13 
 
 Complaint form to remove constable, 163 
 
 Congress, members of, privileged from arrest, 45 
 
 Constable, antiquity of the office 9 
 
 How originally appointed in England, 10 
 
 Constitution, guarantees election of constable, 11 
 
 Constables, how elected in colonial times 11 
 
 Election of, guaranteed by constitution, 11 
 
 In cities and villages, how elected 12, 14 
 
 Who eligible to the office of, 13 
 
 Constitutional qualifications for, 13 
 
 How elected, 14 
 
 How many elected in each town, 14 
 
 If not elected to be appointed, 14 
 
 Office becoming vacant, justices appoint, 15 
 
 Vacancy in cities, how supplied, 15 
 
 In Albany, how elected, IG 
 
 Vacancies filled, how 16 
 
 Give bond, • lY 
 
 To file bond in town clerk's office 18 
 
 To take oath of office IG 
 
 Not taking oath, office vacant, 16 
 
 Appointment of, a judicial act, 19 
 
 Hold their office for one year, 19 
 
 Vacate the office, how, 20 
 
 Not to receive gifts when 21 
 
 Not to be hired to delay action 21 
 
 Not to buy notes or demands, 21 
 
 Actions against, for buying claims, 22 
 
 Forfeit his office, by receiving gratuity, 21 
 
 Sentenced for felony, forfeits his office, 22 
 
 CoUecting money, sureties are liable, 22 
 
 19* 
 
220 INDEX. 
 
 PAGE. 
 
 Constables, acting -without taking oatli of office, 23 
 
 How removed for not paying over .money, 23 
 
 May hold another office , 24 
 
 Duties in courts of record, 25-27 
 
 To be summoned by sheriff to attend court, 25 
 
 Privileged from arrest, when, 26 
 
 To atte«d courts-martial, '. 26 
 
 To execute process from courts-martial, 2T 
 
 Powers and duties in justices' courts 28-94 
 
 To serve process in justices' courts, 28 
 
 Has concurrent jurisdiction with sheriff, when 28 
 
 Governed by same law as sheriffs, when 28 
 
 Must reside in the town where elected, 28 
 
 May call out the power of county, when, 28 
 
 Who may be called ou by constable, 29 
 
 To report resisters to the court, 29 
 
 Liable for performino; duty wrong, 30 
 
 Should be well acquainted with process, 30 
 
 Is protected by process, when, 31 
 
 May stop in executing process, when, 31 
 
 Not bound to look beyond the process 31 
 
 If irregularity waived, constable may proceed, 32 
 
 To serve long summons, when, 32 
 
 To serve short summons, when, 33 
 
 Service of summons on foreign corporations 34 
 
 To leave copy summons, when, 35 
 
 Return of service of summons, what, 36 
 
 Service of summons on B. E. Co., 36 
 
 Service of summons on several defendants, 31 
 
 Service of summons defective, when, 37 
 
 Cannot serve summons on Sunday, 37 
 
 Service of civil warrant by, 38 
 
 Cannot take security on civil arrest, 39 
 
 Must show civil warrant, when, 39 
 
 May confine defendant, when 39 
 
 If justice absent, on return, do what 39 
 
 Cannot detain defendant only twelve hours, 40 
 
INDEX. 221 
 
 PAGB. 
 
 Constables, may re-arrest, when, 42 
 
 May not arrest in civil actions on Sunday, 43 
 
 Liable for escape, when 4G 
 
 May not demand anything of defendant, 4t 
 
 May pass through other counties with prisoner, ^^^' 
 
 Return of, to warrant, contain what, .^_,,.-rrf^ 48 
 
 Must execute attachments, how, 43 
 
 May dispose of property under atlacliments, how, ... 50 
 
 Not to remove goods taken under attachment, when, 51 
 
 To approve security on bond in attachment, 52 
 
 May talce receipt for attached goods, when, 53 
 
 To make inventory of attached goods, 54 
 
 To make return to attachment, 55 
 
 Return of, not to be attacked collaterally 56 
 
 To take personal property in replevin, St 
 
 Return in actions of replevin, 51, 60 
 
 To take possession of concealed property, how, 59 
 
 Should examine papers in replevin, . ."*. GO 
 
 To. notify plaintiff that defendant excepts to sureties, 61 
 
 To serve subpoenas; how, 61 
 
 To make return of service of subpo3nas, 63 
 
 Should execute a venire, 64 
 
 Serve venire, how, 67 
 
 To summon what persons for jurors, 61 
 
 lo make return to venire, how, 11 
 
 To summon talesmen as jurors, when 71 
 
 Oath of, on retiring with jury, 11 
 
 Must take oath correctly, on retiring with jury 12 
 
 Must obey oath strictly on retiring with jury 12 
 
 Notify parties when jury come into court, 13 
 
 Enforce executions, when, 13 
 
 May arrest defendant for a penalty, when, 15 
 
 Enforce execution, how 16 
 
 Sells goods on execution, how 16 
 
 Must make the money, if possible, 11 
 
 Liability on illegal levy, '^'^ 
 
 May enter buildings for -property on execution, 18 
 
222 
 
 PAGE. 
 
 Constables, make inventory of gooda levied on, 78 
 
 May enter buildings to take goods, when, 78 
 
 May remove goods on execution, 79 
 
 Sell property on defendant's premises, 80 
 
 Levy on money, how, 81 
 
 Levy on mortgaged property, how, 82 
 
 Must levy before execution expires, 82 
 
 Sale of, under execution, 84, 85 
 
 Cannot purchase at his own sale, . . . -. 85 
 
 May take defendant on execution, when, 85 
 
 Not liable for false imprisonment, when, 8S 
 
 Liable on neglect' to return execution, 91 
 
 Should pay money collected at once, 92 
 
 Executions on two judgments proceed, how, 93 
 
 May serve summons to remove tenaut, 9S 
 
 Eeturn of service of summons on tenant, 97 
 
 Summon Jury between landlord and tenant, 98 
 
 May remove tenant, when, 99 
 
 As to idle and truant children 99 
 
 Summoning jury as to damages on highway, 101 
 
 Summoning jury as to enoroaehraent, 101 
 
 Collect fine on encroachment 103 
 
 To arrest beggars and vagrants, lOi 
 
 To arrest disguised persons, 105 
 
 To arrest hawkers and peddlers, 106 
 
 To arrest putative father, 108 
 
 May arrest in another county, 109 
 
 To detain putative father, 110 
 
 Should see that warrant for a father is correct, Ill 
 
 Arrest disturbers of religious meetings, 112 
 
 Duties under excise law 113 
 
 Summon jury as to habitual drunkards, 115 
 
 Execute search for personal property, 115 
 
 May foreclose chattj;! mortgnge, 117 
 
 To search for property relating to the canal, 118 
 
 To search for public books, when, 119 
 
 May serve papers for supervisors, 120 
 
INDEX. 223 
 PAGE. 
 
 Constables, to collect taxes, when, 121 
 
 Serve process in courts-martial, 123 
 
 Duties as a peace officer 124-143 
 
 Duties in criminal proceedings 124-143 
 
 May arrest felon without warrant, when, 124 
 
 May arrest for affray without warrant, when 124 
 
 May arrest for assault without warrant, when, 126 
 
 Duty in riot or affray, 127, 128 
 
 On arrest without warrant, duty of, 121, 128 
 
 May take escaped prisoner at any tune, 129 
 
 Sliould see that warrant is regular, 130 
 
 To act on receipt of warrant, 132 
 
 May break doors on arrest, when, 133 
 
 "What force may apply on arrest 134 
 
 Duty after arresting, 135 
 
 Duty on arrest in foreign county, 136 
 
 To take prison.er to give bail, 137 
 
 To summon jury for special sessions, 137 
 
 Serve subpoena, for special sessions, 139 
 
 To attend court of special sessions, 139 
 
 To serve search warrants, - 140 
 
 Liable for goods while in his possession 142 
 
 Cannot act. for party in justices' court, when, 143 
 
 Cannot, buy claims to collect, 143 
 
 I^ot to receive gratuity for c6rt4in acts, .• 143 
 
 Convicted of misdemeanor forfeits office, 144 
 
 Not to purchase at sale, when 145 
 
 Penalty for not serving or returning execution, 145 
 
 Penalty for not filing oath, 146 
 
 Penalty for not executing process, 146 
 
 Cannot.act.by .deputy, 146 
 
 Must attend jury, when, 148 
 
 Cannot charge for keeping prisoner 149 
 
 Must.allow .prisoner, to get necessaries 149 
 
 Kot liable for not returning execution, when 150 
 
 Action against security of, 151 
 
 Bondof, inKewYork, 151 
 
224 INDEX. 
 
 PAGE. 
 
 Constables, fees in justices' courts, 153 
 
 Fees in city of Albany, 154 
 
 Fees on trials of habitual drunkards 156 
 
 Fees, in special proceedings 155, 15G 
 
 Fees, insolvent proceedings, 157 
 
 Fees, special proceedings in Albany, 158 
 
 Fees, orimiDal cases, .'. 1 53 
 
 Not entitled to fees on levy only, 159 
 
 Kntitled to statute fees only, 160 
 
 To present bill to supervisors, 160a 
 
 Form of notice to, of election, 161 
 
 Form of appointment, 161 
 
 Form of resignation, 162 
 
 Form of notice of resignation, 162 
 
 Form of complaint to remove, 163 
 
 Form of notice to appear, 164 
 
 Form of constitutional oath, 166 
 
 Form of service of summons, 168 
 
 Form of oath on adjournment, 183 
 
 Form of oath on retiring with jury, 184 
 
 Form of indemnity to, 187 
 
 Form of, to county clerk as to bail, 205 
 
 Form of summons to attend court, 215 
 
 Form of certificate of attendance of, 215 
 
 CoEPORATiOK, form of proof of service on, 168 
 
 How served with summons, 34 
 
 Railroad, how served with summons 36 
 
 Counsellors privileged from arrest, when, 44 
 
 CotTRT OP LORD CONSTABLE, jurisdiction of, 11 
 
 Courts-martial, constable to attend, 26 
 
 Constable to enforce process in, 27 
 
 Courts of record, constables to attend 25 
 
 Defendant cannot give security on civil arrest, 39 
 
 May be confined on arrest, when, 39 
 
 May be taken before another justice, 40 
 
 May be detained only twelve hours, 40 
 
 Privileged from arrest, when, 41 
 
IXDBX. 225 
 
 FAQE. 
 
 Defendant, may except to plaintiff's sureties to replevin, 5S 
 
 May give bond in. replevin, 58 
 
 May be rearrested, when, 42 
 
 May give bond for attached goods 51 
 
 Disguised pbksons to be arrested, 105 
 
 Disorderly person, warrant to arrest, 212 
 
 Warrant to commit, 213 
 
 Drunkard, habitual, proceedings against, 114 
 
 Form of venire as to, 201 
 
 Electors, exempt from arrest, when, ■ 43 
 
 Knoroachment, form of precept for a jury, 195 
 
 ATarrant to collect costs 195 
 
 On highways, proceeding in, 101 
 
 Escape, what is, 46 
 
 Officer liable for, when, 46 
 
 Excise, proceedings under law as to 113 
 
 Executions, contain what f 3 
 
 Issued when '3 
 
 Eeturnable, when, ■ 14 
 
 Against joint debtors, part served '74 
 
 May be renewed, when and how, '74 
 
 For penalty, indorsement on, ... J '75 
 
 Cannot issue after five years '75 
 
 Levy under, how made, '76 
 
 Inventory of goods taken, should be made 78 
 
 May reach property in building, '78 
 
 Goods taken ou, may be removed, '79 
 
 Does not cover a levy after sixty days, 82 
 
 Against attached property, 83 
 
 Execution, not returned, damages,, '92 
 
 Not returned, sureties liable, 92 
 
 Return to, contain what, 93 
 
 On two judgments, how paid, 93 
 
 How stayed on appeal, 94 
 
 Action for not returning, 150 
 
 Penalty for not levying or returning, 145 
 
 Several, how satisfied, 84 
 
220 
 
 PAGE. 
 
 KxBOUTlON, form against property, 184 
 
 Form against the person 1 85 
 
 Form, indorsement on, 185 
 
 Form, renewal of, 186 
 
 Form, indorsement of levy, 186 
 
 Form, notice, of sa\e under, 186 
 
 Form, bill X)f . sale under^ 187 
 
 Form,, bond of indemnity on, 187 
 
 . - Form, return on, 189 
 
 Exempt, PEOPEETT,, what is; 87 
 
 Wliat, not, ,.. . 90 
 
 Must be proved to be so, when 90 
 
 Father, putative, form of warrant to arrest, 200 
 
 Form of certificate of justice on .bond, 201 
 
 Fees of. constables, m justice's court, 153 
 
 Qn trial of drunkards, ISr. 
 
 In, special proceedings, 155, 156 
 
 In. criminal cases 157, 158 
 
 Supervisors pay, wlien, 158 
 
 Entitled for. services rendered, ..'. 158 
 
 To. be. paidby -Supervisors, when, 159 
 
 Supervisors act. judicially in auditing, 160 
 
 Fees of witnesses, must be. paid 62 
 
 Fblon, .may. be .arrested without warrant, 124, 125 
 
 Felony, committed by constable, forfeits his office, 22 
 
 Female, not to be arrested on execution 86 
 
 Fighting. Persons, engaged in, may be arrested, 126 
 
 Fire VEN, exempt from jury duty, 69 
 
 I'lXTUBES, what are, 80 
 
 Fine, to whom paid^ . - • , 139 
 
 Gratuity, constable not to receive, '. 14^ 150 
 
 Habitual Drunkards, proceedings against, 114 
 
 Hawkers,. to be arrested,, when, 106 
 
 Highway, .form of. precept for a. j.ury, 194, 195 
 
 Summons, for not .working, 196 
 
 ■Warrant for not working, 197 
 
 Highway Law, proceedings under, 100 
 
INDEX. 227 
 PAOB. 
 
 House, protects from arrest, when and whom, 42 
 
 House of defendant, may not be entered, when 35 
 
 Inventoey to be made of attached goods, 54 
 
 To be made of goods taken in execution 18 
 
 Of attached goods, form. of, Ill 
 
 iKREGULAKiTr in prooess waived, constable may enforce, . 32 
 
 JuROKS, who competent to be, 67 
 
 Who exempt from being, 68 
 
 Who may be discharged from serving on, 69 
 
 Bystanders may be summoned as, when 71 
 
 Juny, how summoned, to remove a tenant 98 
 
 May be summoned to try title, 11 
 
 Justices to appoint constables when 14 
 
 Appointment of constable, hfiw set aside 19 
 
 May accept resignation of constable, 20 
 
 Justices' Courts, constables to serve process of, 28 
 
 Proceedings for replevins in 56-60 
 
 Fees of constables in, 153 
 
 Laitolord may remove tenant, when, 95 
 
 Summons to tenant 190 
 
 "Warrant to remove 192, 193 
 
 Lesislatuee, Members, &o., privileged from arrest, 44 
 
 Levt, how made under execution, 76 
 
 Illegal, constable liable, 77 
 
 Creates a lien on goods, 79 
 
 On mortgaged property, 82 
 
 Does not satisfy judgment, 83 
 
 Form of indorsement, 186 
 
 License, proceedings in case of, 113 
 
 Limitation of number of constables, 14 
 
 Liquor, selling without license 113 
 
 Lord Constable, power of, 10 
 
 Abolished, when 11 
 
 Jurisdiction of court of, 11 
 
 Magistrate .may order arrest without warrant, when, . . . 129 
 
 Absent, constable is to find another, 135 
 
 Marines privileged from arrest, when 45 
 
 20 
 
228 INDEX. 
 
 PAGE. 
 
 MBETnras, keligiohs, disturbers of, 112 
 
 Militia, exempt ivrnm arrest, when 43 
 
 Mortgaged Pkoperty may be taken on execution, ...... 82 
 
 Mortgage, Chattel, foreclosed by constable, 117 
 
 Notice of sale, form of, 202 
 
 New York, bond of constable in, 151 
 
 Notice of sale on foreclosure of chattel mortgage, 202 
 
 Notice, form for constable to appear, 164 
 
 That constable gave no security, 167 
 
 To Constable of his election, form of, 161 
 
 Of sale, form under execution 186 
 
 Oath of office of constable, before whom taken, 16 
 
 Certificate of, when filed, 16 
 
 Of constable, on retiring with jury, 71 
 
 On retiring with jury how taken 72 
 
 Oath, form of constitutional 168 
 
 Penalty for not filing, 146 
 
 Of constable on adjournment, form, 183 
 
 Retiring with jury, 184 
 
 Officers of court, when privileged from arrest, 44 
 
 Of Legislature, when pnvileged from arrest, 44 
 
 Of army and navy, privileged from arrest, when, 45 
 
 Order, form to remove constable, 164 
 
 Certificate of clerk, on, 165 
 
 Ordinary negligence, what is, 49 
 
 Parties to actions, privileged from arrest, when, . . : 44 
 
 Pawned property, proceedings to search for, 115 
 
 Peace warrant, form of, 212 
 
 Peace to.be preserved by constables, 124 
 
 Peddlers to be arrested, when 106 
 
 Peddler, form of warrant to collect fine of, 199 
 
 Personal property, recovery of possession of, 56-60 
 
 Recovery of, see Replevin. 
 
 Pledged property levied on, how, 82 
 
 Persons what may be called on to aid constable, 29 
 
 Resisting, to be reported to the court, 29 
 
 Resisting constables, to bo punished, 30 
 
INDEX. 229 
 
 PAGE. 
 
 PhTsiouns exempt from jury duty 71 
 
 Poll list of election, to be kept, 14 
 
 Possession of personal property, recovery of, 56-60 
 
 PowEB OF THE conNTY may be called out by constable, . . 29 
 
 PmsoNEE, constable cannot charge, 149 
 
 May send for necessaries, 149 
 
 Privilege from arrest, local, when 41 
 
 Temporary, what 43 
 
 A man's house protects himself, not strangers, 42 
 
 Permanent, when, 45 
 
 Of constable, from arrest 26 
 
 Pkooess, protects ofBcer, when, 31 
 
 If irregular, constable may not act, 31 
 
 Pbopertt pawned may be searched, when, 115 
 
 Railroad company, how. served with summons, 36 
 
 Receipt may be taken for goods attached, 50, 53 
 
 ■ Form for attached property, Ill 
 
 Recovery of possession of personal property, 56-60 
 
 Of personal property, see Replevin. 
 
 Religious meetings, disturber of, 112 
 
 Removal of constable by three justices, 23 
 
 Renewal of execution, form of, 186 
 
 Replevin in justice's court, when, 56 
 
 Proceedings in, 56-60 
 
 Form of affidavit,. 175 
 
 Form, indorsement on affidavit, 176 
 
 Form, plaintilT's undertaking, 176 
 
 Form, acknowledgment of surety, 177 
 
 Form, qualification of surety 177 
 
 Form, summons in, 177 
 
 Form, return to summons, 178 
 
 Form, exceptions to sureties 179 
 
 Form, undertaking of defendant, 179 
 
 Form, affidavit of third party, 179 
 
 Form, notice to plaintiff of claim, 180 
 
 Form, undertaking on claim, 181 
 
 Resignation, of constable, form of, 162 
 
230 INDEX. 
 
 PASS. 
 
 Resignation, form of notice of, 162 
 
 Return, of service of summons, contain what, 36 
 
 Should be prompt and accurate, 38 
 
 To attachment, contaius what, 55 
 
 Cannot be attacked collaterally, 56 
 
 To service of a venire, 11 
 
 Of constable in replevin, show what 60 
 
 Of service of ■ summons on tenant, 91 
 
 Indorsed on execution, 151 
 
 Form of service of summons, 168, 177 
 
 Form of service of warrant, 169 
 
 Form of service of- attachment, .;..... 174 
 
 Form of service of subpoena, 181 
 
 Form of service of venire, 183 
 
 Form of service of execution 189 
 
 Of constable to county clerk as to bail, 205 
 
 To attachment against a witness, ^14 
 
 To supervisor's summons, 203 
 
 To criminal warrant 205 
 
 Riot, duty of constable in, 127, 123 
 
 Sale, on an execution, how conducted, 85 
 
 Under execution, constable not to purchase, 1 45 
 
 Under foreclosure of chattel mortgage, 118 
 
 Salt-works, persons m, exempt from jury duty, 69 
 
 Search-warrant, what is, " 139, 141 
 
 How served, 140 
 
 Form of, 210 
 
 Form of return to, 211 
 
 Security, action -against on constable's bond, 151 
 
 Of constable, form for, ' , 166 
 
 Form of approval, .... 166 
 
 Sewing-machine, exempt from sale on execution 88 
 
 Sheriff, - to summon constables to attend court, 25 
 
 Special proceedings, fees in, . , : , . . . . 155, 156 
 
 Special sessions, form of venire for, 207 
 
 Form, return to venire, 208 
 
 Form, subpoena for, 208 
 
INDEX. 231 
 
 PAGE. 
 
 Special sessions, form, return of subpoena, 209 
 
 Form, warrant on conviction, ." 209 
 
 Howheld 138 
 
 Constables serve subpoenas for, 139 
 
 SuBPtENA, form in civil actions, 181 
 
 Form, proof of service, 181 
 
 Form, for special sessions, 208 
 
 Form, criminal, 210 
 
 How served, 61 
 
 Eetum to be made, 63 
 
 Summons, long, wbat is 32 
 
 "When to be served, 32 
 
 Short, what is, 33 
 
 When to be served, 33 
 
 How served on persons 33 
 
 How served on corporation, 34 
 
 Copy to be left, when 35 
 
 Eeturn to service of, contain what 36 
 
 On railroad company .' . . . 36 
 
 Cannot be served Sunday, ST 
 
 Service of defective, when, 31 
 
 May be amended, when 37 
 
 Against tenant, when, 96 
 
 Against tenant, how served, 91 
 
 Eeturn of service, 91 
 
 Form for not working highways, 196 
 
 Proof of service, 19'7 
 
 Form of civil, 161 
 
 Proof of service, 168 
 
 Eeplevin ITT 
 
 To constable to attend court 215 
 
 Against tenant, form of, 189, 190 
 
 Form of proof of service, 190 
 
 Of supervisor, return to, 203 
 
 Sdndat, warrant to seize goods sold on, 214 
 
 SUNBAT, what is, 43 
 
 ISo arrest on, in civil actions, 43 
 
 20* 
 
232 
 
 PASX. 
 
 Supervisors papers, constable to serve 120 
 
 Supervisors, pay constables' fees, when, , , 158 
 
 Act judicially in auditing, 160 
 
 Sureties of constable liable, -when, 92 
 
 Of constable liable for money collected by him, 22 
 
 In replevin, qualification of, 58, 61 
 
 SuBETT on bond to be approved by constable, when, 53 
 
 To prevent removal of goods, 172, 173 
 
 Qualification form of, 174 
 
 Form of approval ] 74 
 
 Teachers exempt from jury duty 71 
 
 Team what is, exempt from execution, 89 
 
 Tenant's property, what may be levied on, 80 
 
 Tenant, may be removed, when, 95 
 
 Form of summons to remove, 189, 190 
 
 Proof of service, 190 
 
 Venire, to remove, 191 
 
 ■Warrant to remove, 192, 193, 194 
 
 Eeturn to warrant, 194 
 
 Time of detaining defendant on arrest, 40 
 
 Of service of summons, how reckoned 33 
 
 Of computing service of attachment, 49 
 
 TrrHiNGS, ancient in England, 9 
 
 Town Clerk to notify justices, to appoint constable, 16 
 
 Town Meeting, constables to be elected at, 14 
 
 Undertaking, stays execution on appeal 94 
 
 Form of plaintiff in replevin 176 
 
 Defendant in replevm, 179 
 
 Against third party in replevin, 181 
 
 Vaoanot in office of constable, supplied how, 15 
 
 Tagrants to be arrested 104 
 
 Vagrant, form of warrant to arrest 193 
 
 Form of warrant to commit, 199 
 
 Venire, to be issued when 64 
 
 How executed, 65, 67 
 
 May be challenged to the array, when, 65 
 
 Form of, 182 
 
INDEX. 233 
 
 PAGE. 
 
 Venire, form of return to, 183 
 
 Form to remove tenant, 191 
 
 Form of service of, 192 
 
 Form of, for jury as to higliwaj^. 194 
 
 Form of, for encroachment 195 
 
 Form as to habitual drunkard, 201 
 
 Form for special sessions, 201 
 
 YiLLiOES, constables in, 12, 14 
 
 Wakrant, civil, what is 38 
 
 How served, 38 
 
 Who privileged, from arrest under, 41 
 
 Must be shown, when, 39 
 
 Return to, contain what, 41 
 
 Return of, may be amended, 48 
 
 Issue to search pawned property, 115 
 
 To search for canal property, 118 
 
 For public books and papers, 119 
 
 To collect taxes by county treasurer, 121 
 
 From courts-martial, executed how 123 
 
 Not necessary for arrest, when, 124 
 
 Criminal, what is, 129 
 
 Wlio may issue, 129 
 
 . Where executed 130 
 
 To be indorsed in foreign county, 130 
 
 If wrong name, no protection 113 
 
 No blank should be left in, 131 
 
 Returnable, when, 131 
 
 Continues in force, 132 
 
 To be shown, when, 133 
 
 Constable may keep, 13T 
 
 For putative father, how executed, 109, 111 
 
 Must be correct, Ill 
 
 Form of a civil, 169 
 
 Form of proof of service, 169 
 
 Form to remove tenant, 192, 193, 194 
 
 Form of return to 194 
 
 Form to collect costs on encroachment, 195 
 
234 INDEX. 
 
 FACE. 
 
 ■Wabrast, civil, form to collect fine as to highways, ... 197 
 
 Form to arrest a vagrant, 198 
 
 Form to commit a vagrant, 199 
 
 Form to collect fine of a peddler, 199 
 
 Form to arrest putative fathe^ 200 
 
 Form of indorsement on, 201 
 
 Form to search for canal property, 202 
 
 Form of return to warrant, 203 
 
 Form for assault and battery, 204 
 
 Form for criminal 204 
 
 Form of return to criminal warrant, 205 
 
 Form to commit for examination, 206 
 
 Form to find bail, or special sessions, 206 
 
 Form to bring up prisoner, 207 
 
 Form of conviction by special sessions, 209 
 
 Form to search for goods, 210 
 
 Form to keep the peace, 212 
 
 Form to arrest disorderly person 212 
 
 Form to commit a disorderly person, 213 
 
 Form to seize goods sold on Sunday, 214 
 
 Witness, how served with subpoena, 61 
 
 May be attached, when, 63 
 
 In landlord and tenant proceeding, 99 
 
 Privileged from arrest, when, 44 
 
 Form of attachment for, 182 
 
•■J^t*