The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-07-31
Common Pleas-Genera1 Term.
THE AUTHORITY OF TIE CONSTABLE.
Before Hon. JudRs Woodruff.

Before Hon. Judge Woodruff
july 3o-Ddvs, respondent, Hdfner ct ais, appel
ants-Ihers ID nothing in the return herein to show
that there any variance between the and
the complaintand such objs cton was raised the
by appearing and pleading to the merits The other
Of appeal Of importance II Is insisted
tina. the bond of the defendant given TO the
faithful performance Of the duties Of tho defendant
kruger. constable Of the Second ward is not
ormy with the requirements Of the statute there
be valid, action be sustained thereon unless the
plaintiff first obtain Judgment against the constable
hs ~ n ane 0Ond nr
ion Of statutes in 1872 the Law in relation 70 the
generally, and the bonds they should give and the
manner in which such bonds should be filed and
s "
relating particularly to the city Of New York.
act" was also passed. Rev. Laws, s42-ths l47th
executed by every constable elected appointed to the
office Of constable of the city of New York The two
IN the Relating
the city Of New YORK particularly They are wholly
cannot have effect in the place. The general law
has spplicston therefore, to the city of New York.
The statute passed with especial reference to
overcomes any reasoning founted upon the suggestion
that wards in the city are to be taken as included In
1928 the general law IN relation to to. ms was in sub
stance renaced ana the act relating to the city Of
New York was left unrepsaled. X. s, s46, sec. q;
force, ESQ far relates to such bcnds) before.
Again. examination OF title Of chap III, part l. Of
sa. in "s sa
Of its provisions are applicable at all to this city
The ACT to reduce &c." above referred TO- being
surety ties by any constable shall be given to
the Mayor, Aldermen and CommonAy Of the city in the
the who sh. judge Of and the
potency OF the sureties and file the bond with the Clerk
Of the city and county. And in the case OF "any re-
constable i shall be swfui FOR the Judge or judges OF
the Mayors Court now for this purpose ths Court Of
Common Pleas,) upon motion in open Court and upon
showing that such recovery hath been hsd and that
the judgment time Of such motion sunsatisHsd,
to order the bond to be put in suit and whom Judgment
open Court direct much to be levied thereon as will
pay the debt or damages recovered by the party ae
grieved with Costs and to be paid to such party and
the act provides for further levy upon recovery OF
other ue 2ments against such constables like mo
p Ss 81 n was
tu,s relating to towns above referred to Rev Stat 34e
therein the further provision relating to
so Of Laws Of ls47 vol l; 2O5) II is bond to the
s's S mo- 40 ars not 2, h
Mayor 1t is in the OF 81. Geo. and not Of $780, 1t
not therefore, the bond required by the act relating
statutory security. Under that act these suretes
not liable the action until after judgment recovered
against the constable and leave prosecute been
obtaiped-snd that statute contemplstes a rs:overy
when had, to be in the Of the Mayor &C., of this
city, Tor the full amount of the psnalty, whereupon
levy be made from time to time, of the amounts
which nsy successfully be recovered by persons ag
erieved by the act default Of the constable. And,
moreover this bond does not in substance conform to
the ute clearly does not then, ardnx 1t a.
voluntary bond. there is warrant for bridging an
seton thereon in The Of the party sggreved Al
though il has been epastedy held that . suit may
brought the undertaking required the act relating
to towns before iee1ed to- in the nsme Of the party
sRgrevec that ia because such undertaking has the
sanction of the statute itse aud operates for the
ing substantial compliance with that statute. 1t
appears to remarS Ahle III 1t be true, in
formed that bonds like the present hsve into ge
neral in the city, unless there IL statute
the subject mody the provsons Of the oct relating
to the city Of New York in this respect In the multi
tuce OF special statutes in force relating to this CITY,
mia hit reasonably have expected counsel who rely
upon this bond. eeek to uphold this judgment to
aid by pointing the statute II any be found
1t without first obtaining Judgment against the
corstable and without leave and In the Of this
plaintiff, wa constrained to say that we have not
beer able 10 find cuch statute; and II in hold
ing the ssct to reduce, &c., to be still applicable to
copstsbles bonds IN this city, i. will be for the want Of
Oh aid and not from the want OF digent exemiua-
On with the expectation of Ending law wh.h has
led 70 the adoption Of tn ferm of bond when the bond
prescribed ty such had been in for very many
years, snd down to recent period Our conclusion,
these circumstances H. that the ant in relation to
The city of New York far relates to such bonds
147 st in force and that this Judgment cannot
be sustained.