be entered against day mentioned in such summons, or does not show sufficient cause (q) why the 20 March 1810 § 12. execution should not issue against him, then the justice shall enter judgment 5 Sm. 167. against such constable, for the amount of the first above-mentioned execution, On return of protogether with costs, on which judgment there shall be no stay of execution; and cess, judgment to upon application of the plaintiff, or his agent, the said justice shall issue an execu- constable, without tion against the constable for the amount of such judgment, which execution may stay of execution. be directed to any constable of the county, or other fit person accepting thereof, or to a supervisor, as aforesaid, whose duty it shall be to execute the same: Pro- Constable may vided always, That nothing in this act contained shall in any manner impair or alter the proceeding as heretofore established with regard to insolvent debtors, and their discharge, on a full surrender of their property. take the benefit of insolvent laws. P. L. 5. 30. So much of the act entitled "An act to amend and consolidate, with its 13 Oct. 1840 § 12. supplements, the act entitled 'An act for the recovery of debts and demands not exceeding one hundred dollars, before a justice of the peace, and for the election And may appeal of constables, and for other purposes, passed the 20th of March 1810,'" as provides from the judgment. that the justice shall enter judgment against a constable for the amount of an execution together with costs, on which judgment there shall be no stay of execution, shall not be construed to deprive the constable of the right of appeal (r) to the court of common pleas of the proper county, upon such conditions and under like limitations, as in the case of other defendants. cution issued there 31. In all cases where judgment shall be rendered by an alderman or justice of 29 March 1824 § 2. the peace, against any constable in this commonwealth, under the 12th section of S Sm. 301. the act to which this is a further supplement, in addition to the remedies provided Transcript may be by the existing laws, it shall be lawful for the plaintiff or plaintiffs, his, her or filed in the comtheir legal representatives, to take out a transcript of such judgment, and file the mon pleas, and exesame in the office of the prothonotary of the court of common pleas of the proper from. county; and it shall be the duty of the prothonotary, (s) to the request of such plaintiff or plaintiffs, to issue a fieri facias or capias ad satisfaciendum, against such constable, to be proceeded in as in other cases; or the said plaintiffs may apply to the Or attachment court of common pleas, who shall have power to issue an attachment against such may be awarded. constable: Provided, That such proceedings shall in no case be deemed or construed to exonerate the surety or sureties of such constable. 32. Where any constable shall refuse or neglect to pay over to the defendant 28 March 1820 § 2. or defendants, his or their agent or legal representatives, the overplus money which ant. 7 Sm. 308. he or his deputy may have made or received upon any execution or executions, Proceedings to then and in such case, the party or parties aggrieved may apply to the alderman compel payment of or justice of the peace who issued the process, who shall thereupon proceed against overplus to defendsuch constable in the manner prescribed by the 12th section of the act to which this is a supplement, in cases where the constable makes a false return, or neglects to return the execution; and if, upon such proceedings, the justice shall receive the overplus money, or if it shall be voluntarily paid to him at any time by the constable, he shall, in either case, pay over the same to the defendant or defendants, or his or their agent or legal representatives, without any fee for making such payment. Ibid. § 7. tion, to be deemed 33. If any constable shall receive money by virtue of an execution or other process, and shall neglect or refuse, upon application to him made by the party inter- Refusal to pay ested, to pay the amount thereof to the party entitled to receive the same, or to over money colhis, her or their agent or legal representatives, he shall be deemed guilty of a mis- lected on execudemeanor in office; and upon conviction thereof in the court of general quarter a misdemeanor. sessions of the peace of the proper county, he shall be sentenced to pay, at the dis- Punishment. cretion of the court, a fine of not less than twenty dollars, nor exceeding one hundred dollars, and shall stand committed until the money so withheld shall be paid, together with the interest, fine and costs, and moreover, shall, for seven years thereafter, be incapable of holding the office of constable, or the appointment of deputyconstable. 5 Sm. 170. 34. Any constable who has or may hereafter give security agreeably to law for 20 March 1810 § 19. the faithful performance of the duties of his office, and afterwards, on neglecting or refusing to perform such duties, shall have judgment rendered against him for such When justices may neglect or refusal, and on being prosecuted for the recovery of such judgment, against constables' becomes insolvent, (1) abandons his country, or from any other reason it becomes sureties. v. Moore, 1 Ash. 27. Amey v. Kennedy, Ibid. 160. Gregor v. Slingluff, 1 M. 210. Miles v. Richwine, 2 R. 199. (7) It is a good defence, that the judgment was paid before the execution issued; but the issuing of a subsequent execution does not discharge the constable from the liability incurred. Erans v. Boggs, 2 W. & S. 229. If he has accepted indemnity from the plaintiff, under a claim to the property levied on, made by a third party, he is bound to proceed, and is estopped from showing that the goods did not belong to the defendant. Corson v. Hunt, 14 P. S. 510. And where the execution had not been returned within the time limited, it is not competent for the constable to issue process prove that the defendant had no property, or that the defendant's wife had died the night before he proceeded to execute the writ, in consequence of which, through feelings of humanity, he failed to execute it. McClain v. Smith, 4 Clark 452. (r) The plaintiff as well as the constable is entitled to an appeal. Sott v. Kelso, 4 W. & S. 278. (s) A previous execution by the justice is not necessary. Parchment v. Aiken, 3 W. 278. (t) The law, in such case, requires no higher standard of diligence, than the ordinary application of its own process. Kirkpatrick v. White, 29 P. S. 176. But a return of "nulla bona," to an execution issued by the justice, is not, in itself, sufficient evi 5 Sm. 170. 20 March 1810 § 19. impracticable for such judgment or judgments to be recovered from such constable as aforesaid, or where a constable makes such default, and abandons his country before judgments are had against him, then and in such cases only, the justice(u) before whom the judgment or judgments stand unpaid shall be and is hereby authorized and empowered to issue a scire facias, and proceed against such bail() for the recovery of judgments (w) had as aforesaid, in the manner that constables are now suable, saving only the right of appeal to such sureties. Sureties may appeal. 23 April 1829 § 3. 10 Sm. 466. On payment by sureties, the ori 35. In all cases where any constable has been or shall be entrusted with the execution of any process for the collection of money, and by neglect of duty has failed or shall fail to collect the same, by means whereof the bail or security for such constable shall be compelled to pay the amount of any judgment or judgments; ginal judgment to such payments shall vest in the person or persons paying as aforesaid, the equitable interest in such judgment or judgments, and the amount due upon any such judgment or judgments may be collected in the name of the plaintiff or plaintiffs, for the use of such person or persons. (x) vest in them. 28 March 1820 § 6. 7 Sm. 309. cipals. Nor any other con 36. It shall not be lawful for any deputy-constable, or any person or persons at his direction or request, and for his use, either directly or indirectly, to purchase Deputy-constables any goods, wares or merchandise taken in execution and sold by the principal of not to purchase at such deputy-constable: nor shall it be lawful for any constable, or for any person sales by their prin- at his request and for his use, in any township, city or district in which there are more constables than one, to purchase any goods, wares or merchandise taken in execution and sold by any other constable within such township, city or district. And if any constable, deputy-constable, or other person shall be convicted before the justices of the court of general quarter sessions of the peace of offending against or violating any of the provisions of this section, he, she or they so offending, upon conviction thereof, shall forfeit and pay, at the discretion of the court, any sum not less than twenty dollars, nor exceeding one hundred dollars, the one-half whereof shall be paid to the person informing, and the other half to the use of this commonwealth, and moreover, shall, for seven years thereafter, be incapable of holding the office of constable, or the appointment of deputy-constable. stable of the same township, &c. Penalty for so doing. 1 April 1826 § 7. 9 Sm. 112. Constables not to sell at auction, except on execution. Penalty for so doing. 20 April 1850 § 19. P. L. 553. Constables to serve process where the sheriff is interested, and no coroner in commission. 2 July 1889 § 1. P. L. 519. 37. No sheriff, constable or other officer, shall sell or dispose of, by way of vendue, at any place or places, within two miles of the state-house in the city of Philadel phia, or within the chartered limits of the city of Pittsburgh, any lands, tenements, goods or chattels, other than such as are taken in execution, and liable to be sold by order of law, or distrained for rent in arrears; and if any sheriff, or constable, or other officer, fraudulently or wilfully violate or evade this provision of this act, it shall be deemed to be a misdemeanor in office, for which the offender may be prosecuted by indictment, in any court of competent jurisdiction. 38. In all suits which may hereafter be instituted in any court of this commonwealth, in which the sheriff of any county may be a party, (y) when there is no coroner in commission to serve process, it shall be lawful for any constable in the county where the process has been issued, to serve the same, and perform the duties in relation thereto which coroners are authorized to do under the laws of this commonwealth. V. Their duties in regard to elections. 39. It shall be the duty of the constable or constables of each township, ward and district, at least ten days before the day hereinafter appointed for the election of inspectors, to give public notice, by six or more printed or written advertisements election of inspect affixed at as many of the most public places therein, of the time and place of holding such election. To give notice of ors. 18 June 1840 § 2. P. L. 684. elections. Form of notice. 40. The constable or constables of every township within this commonwealth, shall give public notice of the township elections, by ten or more printed or written And of township advertisements, affixed at as many of the most public places therein, at least ten days before the election; and in every such advertisement they shall enumerate, designate and give notice as sheriffs of counties in cases of general elections are directed by the 1st and 2d divisions of the 13th section of the act to which this is a supplement; (2) and in case of the neglect, refusal, death or absence of the aforesaid constable or constables, the duties herein enjoined on them shall be performed visors or assessors. by the supervisors or assessor of the proper township, but said supervisors or as In case of neglect, duty to be performed by super dence of insolvency, as he may have real estate. Willard v. Wickham, 7 W. 293. Gilbert v. Henck, 30 P. S. 210. His insolvency, however, may be established by parol evidence. Willard v. Wickham, 7 W. 293. Evans v. Commonwealth, 8 Ibid. 398. (u) The jurisdiction of justices, under this section, is not taken away by the acts giving jurisdiction to the common pleas in suits on constables' bonds. Evans v. Frey, 3 W. 208. Blue v. Commonwealth, 4 Ibid. 217. The party aggrieved may either sue on the bond, or proceed under this act. Palmer v. Commonwealth, 6 S. & R. 245. Campbell v. Commonwealth, 8 Ibid. 414. (v) The constable need not be joined. Evans v. Frey, 3 W. 208. (w) See ante, note u to placitum 11. (a) The constable who, through neglect, becomes liable for, and is compelled to pay the amount of an execution, has no such right. Arbingast v. Houk, 6 W. 228. Mewhorter v. Jamison, 7 Ibid. 353. (7) The act 10 April 1848, § 2, confers the same powers in all cases, against the sheriff, or his sureties, when there is no coroner in commission. P. L. 441. (z) That is, he shall-1. Enumerate the officers to be elected. 2. Designate the place at which the election is to be held. See "Elections." P. L. 684. sessor of the proper township shall not be required to give more than five days' 18 June 1840 § 2. notice; and said elections shall be held and conducted under the regulations, not inconsistent herewith, prescribed in the aforesaid act. But nothing in this act, or in the act to which this is a supplement contained, shall be construed to prohibit a judge, inspector or clerk of election from being voted for to fill any township office, or render either or any of them ineligible to hold the same. Ibid. § 11. 41. Constables, supervisors or assessors, as the case may be, of any ward, township, incorporated district or borough, shall be allowed and paid out of the county Compensation for treasury, two dollars for advertising ward, township, district and borough elections; advertising elec said constables shall also be allowed and paid, as aforesaid, twenty cents for deliv- tions. ering to each township officer a certificate of his election, as directed by this act, And delivering and the act to which this is a supplement. certificates. obstruction. 42. It shall be the duty of every mayor, sheriff, deputy-sheriff, alderman, justice 2 July 1839 § 111. of the peace and constable or deputy-constable of every city, county and township P. L. 543. or district within this commonwealth, whenever called upon by any officer of an To clear election election, or by any three qualified electors thereof, to clear any window, or avenue polls in case of to any window, at the place of the general election, which shall be obstructed (a) in such a way as to prevent voters from approaching the same, and on neglect or refusal, (so) to do, on such requisition, said officer shall be deemed guilty of a Penalty for neglect misdemeanor in office, and on conviction shall be fined in any sum not less than one hundred and not more than one thousand dollars. And it shall be the duty of the respective constables of each ward, district or township within this commonwealth, to be present in person, or by deputy, at the place of holding such To be present at elections in said ward, district or township, for the purpose of preserving the peace, as aforesaid.(b) or refusal. elections. 43. It shall be the duty of every peace officer, as aforesaid, who shall be present Ibid. § 112. at any such disturbance at an election as is described in this act, to report the To report disturbsame to the next court of quarter sessions, and also the names of the witnesses ances to the court. who can prove the same; (c) and it shall be the duty of the said court to cause Indictments to be indictments to be preferred before the grand jury against the persons so offending. preferred. 44. If it shall be made appear to any court of quarter sessions of this common- Ibid. § 113. wealth, that any riot or disturbance occurred at the time and place of holding any Penalty for not election under this act, and the constables who are enjoined by law to attend at reporting disturbsuch elections have not given information thereof, according to the provisions of ances. this act, it shall be the duty of said court to cause the officer or officers, so neglecting the duty aforesaid, to be proceeded against by indictment for a misdemeanor in office, and on conviction thereof, the said officer shall be fined in any sum not exceeding one hundred dollars. Ibid. § 114. 45. It shall be the duty of the several courts of quarter sessions of this commonwealth, at the next term of said court after any election shall have been held under To be examined in this act, to cause the respective constables in said county to be examined on oath, reference thereto as to whether any breaches of the peace took place at the election within their on oath. respective townships, wards or districts; and it shall be the duty of said constables respectively to make return thereof as part of their official return at said court. Ibid. § 97. 46. If the constables or supervisors of any township, ward or district shall neglect or refuse to perform the duties herein required of him or them, they shall Penalty for neglect respectively, on conviction, be fined in any sum not less than fifty nor more than of duty. one hundred dollars.(d) 47. It shall be the duty of the said inspectors and judge to make out a certifi- Ibid. § 54. cate of the election of each township officer aforesaid, which shall be signed by To serve certifithem and delivered to the constable of the proper ward, district or township, and cates of election of by him delivered to the said officer or left at his usual place of abode, within six township officers. days thereafter. VI. Actions against constables. 1 Sm. 365. 48. No action shall be brought against any constable or officer, or any person 21 March 1772 § 6. or persons acting by his or their order, and in his aid, for anything done in obedience to any warrant under the hand and seal of any justice of the peace,(e) (a) No portion of the people possess the right to gather round the polls and remain there, in such numbers as to obstruct the approach of the electors; it is the duty of the constable, either at the request of the citizens, or under the direction of the officers of the election, to remove such obstruction, and open an avenue to the polls; in discharging this duty, he ought to give notice to the people to remove themselves, before proceeding to violent measures; but, having given such notice, he has the right to use as much force as may be necessary to accomplish the object; and every citizen who is called on to assist him is bound to do so. Commonwealth v. Hamilton, Lancaster Q. S., 22 January 1849, LEWIS, P. J. MS. (b) By act 31 March 1854, constables are to receive one dollar per day, from the county fund, for their attendance at general and township elections, except in Philadelphia. P. L. 250. But this act does not apply to a special election. Bogart v. Luzerne County, 3 Luz. L. Obs. 349. In Bradford and Susquehanna counties, by act 19 March 1869, § 2, the attendance of constables upon general township and borough elections, is to be paid by the respective townships and boroughs. P. L. 442. (c) Repealed as to Bradford and Susquehanna counties, by act 19 March 1869. P. L. 441. But the repealing act was repealed as to Susquehanna county, by act 10 April 1873. P. L. 743. (d) By § 128, to be recovered by indictment in the quarter sessions; and all prosecutions to be commenced within one year; see "Crimes": sub-title "Elections." (e) Trespass against a constable for seizing and selling plaintiff's goods, under an execution, out of 21 March 1772 § 6. until demand hath been made, or left at the usual place of his abode, by the party 1 Sm. 365. No action to be brought for any dience to a war rant without a previous demand of a copy. If furnished, justice to be made party, or verdict rendered for defendant. In joint action against justice and or parties intending to bring such action, or by his, her or their attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, duly certified under his hand, and the same hath been neglected or thing done in obe- refused for the space of six days after such demand; and in case, after such demand and compliance therewith, by showing the said warrant, and giving a copy thereof, certified as aforesaid, to the party demanding the same, any action shall be brought against such constable, or other person or persons acting in his aid, for any such cause as aforesaid, without making such justice or justices, who signed or sealed the said warrant, defendant or defendants, on producing and proving such warrant at the trial of such action, the jury shall give their verdict for the defendant or defendants, notwithstanding any defect or defects of jurisdiction in such justice or justices.(g) And if such action be brought jointly against such justice or justices, and also against such constable or other officer, or person or persons acting in his or their aid as aforesaid, then, on proof of such warrant, (h) the jury shall find for such constable or other officer, and person or persons so acting as aforesaid, notwithstanding such defect of jurisdiction as aforesaid; and if the verdict shall be given against the justice or justices, in such case, the plaintiff or plaintiffs, shall recover his, her or their costs against him or them, to be taxed in such manner by the proper officer, as to include such costs as such plaintiff or plaintiffs are liable to pay to such defendant or defendants, for whom such verdict When double costs shall be found as aforesaid: Provided always, That where the plaintiff in any such action against any such justice of the peace, shall obtain a verdict in case the justices before whom the case shall be tried shall, in open court, certify on the back of the record, that the injury for which such action was brought, was wilfully and maliciously committed, the plaintiff shall be entitled to have and receive double costs of suit. constable, verdict to be rendered for constable on proof of warrant. taxed against the to be recovered. Ibid. § 7. Limitation of actions. 28 March 1820 § 1. 7 Sm. 30S. served on con stables. 49. Provided always, That no action shall be brought against any justice of the peace, for anything done in the execution of his office, or against any constable or other officer, or person or persons acting as aforesaid, (i) unless commenced within six months after the act committed.(k) 50. In all cases where any alderman or justice of the peace of this commonwealth shall issue a summons, warrant of arrest or execution, in any civil suit, How process to be against any constable or constables, for any debt or demand alleged to be due by him or them, in his or their individual or private capacity, he shall direct such summons, warrant of arrest or execution to any other constable in the city or county in which the said justice may reside, who shall be authorized and bound to serve or execute the same in the manner prescribed by the act to which this is a supplement, under a penalty of twenty dollars, to be recovered as other fines are recoverable by the same act: and if the constable to whom such process shall be directed, shall neglect or refuse to make return of the same, or having made the money, or any part of it, upon the execution, (and) refuses or neglects to pay over or account for the same, he shall be proceeded against in like manner, and be subject to like proceedings as constables in other cases are liable to, agreeably to the provisions contained in the 12th section of the act to which this is a supplement.(1) 31 March 1856 § 33. P. L. 207. VII. Miscellaneous provisions. 51. The constables of the respective wards and townships shall make return of retailers of liquors, as now provided by law; and in addition thereto, it shall be the duty of every such constable, at each term of the court of quarter sessions of the respective counties, to make return, on oath or affirmation, whether, within his knowledge, there is any place within his bailiwick, kept and maintained in violaDuties of judges. tion of this act; (m) and it shall be the especial duty of the judges of all said Constables to return retailers of liquors. his district, is within the act. Varley v. Zahn, 11 S. & R. 185. But not an action for an escape. Lantz v. Lutz, 8 P. S. 405. Nor for taking the goods of A. under a warrant to levy on the goods of B. Mollison v. Bowman, 3 Clark 281. See Osborn v. Burket, 1 Bro. 343. Or for taking illegal fees under color of an execution. Keller v. Hammer, Bright. on Costs 159. No action lies against a constable for anything done in obedience to a warrant, until a demand and a refusal for the space of six days. An action does not lie for altering the return-day in a summons before serving it upon the defendant. Commonwealth v. Wafel, 157 P. S. 444. (g) Where a constable has pursued his warrant, he can be affected with want of jurisdiction in the magistrate, only where he is sued alone, having, after a proper demand, refused to furnish a copy of the warrant for the space of six days. Jones v. Hughes, 5 S. & R. 302. Kerlin v. Heacock, 3 Binn. 219. A misrecital in the body of an execution, does not render it void, nor will the constable be a trespasser in execut notice. courts to see that this return is faithfully made. And if any person shall make 31 March 1856 § 33. known in writing, with his or her name subscribed thereto, to such constable, the P. L. 207. name or names of any one who shall have violated this act, with the names of wit- Penalty for neglect nesses who can prove the fact, it shall be his duty to make return thereof, on oath to make return on or affirmation, to the court, and upon his wilful failure to do so, he shall be deemed guilty of a misdemeanor, and upon indictment and conviction, shall pay a fine of fifty dollars, and be subject to imprisonment at the discretion of the court, of not less than ten nor more than thirty days. 52. It shall be the duty of the constables of the several cities, boroughs, wards 12 March 1866 § 1. and townships, in the counties of Erie, Luzerne, Susquehanna, Pike and Craw- P. L. 182. ford, (n) to make diligent search for all persons who shall, either directly or in- How such returns directly, be engaged in the sale and traffic of liquors, wines or other strong drinks, to be made in cerand make quarterly returns thereof, under oath, to the courts of quarter sessions tain counties. of the proper counties; and it shall be the duty of the courts to make diligent inquiries of the constables of the manner and fidelity with which they have attended to and discharged the requirements hereby enjoined upon them; and should the courts be satisfied of the unfaithfulness of any constable in this respect, In default to be rethey are hereby authorized and empowered to suspend or remove him from office, moved. and appoint another one in his place. 2 Sm. 541. Mileage for convey 53. Any constable who shall take up and convey to jail any convict who shall 5 April 1790 § 33. escape from his confinement, shall be allowed mileage, at the same rate as constables are commonly allowed, to be paid by the treasurer of the proper ing to jail escaped county. convicts. 6 Sm. 98. 54. It shall be the duty of the judges of the several courts of quarter sessions, 21 Jan. 1814 § 1. oyer and terminer, and common pleas within this commonwealth, after the constables shall have made their returns on the first day of the sessions, to ascertain Judges to select the number of constables attending, and to select a sufficient number to attend constables to atduring the term of the said court, and to discharge the other constables, and to tend the courts. select for every court thereafter until a new election of constables shall be held: Provided, That no constable shall be obliged to serve more than one week at any one time, until the whole list shall have been gone through; and when an adjourned court shall be held, it shall be the duty of the sheriff to give notice to the constable or constables selected by the judges, to attend at the said adjourned court. Ibid. § § 2. Prothonotary or 55. It shall be the duty of the clerk or prothonotary of any of the said courts, as the case may be, to certify the name or names of the constable or constables, and the number of days each constable shall have attended, to the commissioners clerk to certify to of the proper county, who shall thereupon draw their warrant on the county attendance. treasurer in behalf of the said constable or constables, [for one dollar for each and To be paid by every day he or they shall have respectively attended:](o) Provided, That the said county treasurer. constables shall not be allowed pay for the day on which they shall make their Except for returnreturns to the court of general quarter sessions of the peace. day. P. L. 355. 56. The judges of the several courts of this commonwealth shall have power 14 April 1834 § 78. to appoint a crier for the respective court, and so many tipstaves or constables as may be necessary to attend upon the court; and the said officers shall be paid by Judges to fix their the respective county, such sums for each day's attendance as the said judges compensation. shall allow. CONTAGIOUS DISEASES. See AGRICULTURE; CATTLE. 1869, as to Bradford and Susquehanna counties, P. L. 441; and act 26 February 1872, as to Delaware county, P. L. 155. The act 19 March 1869 is repealed as to Bradford county, by act 9 March 1872, P. L. 302; and as to Susquehanna county, by act 10 April 1873, P. L. 743. (n) See act 12 March 1866, as to Chester county, P. L. 190; act 21 March 1866, § 6, as to Erie, Crawford, Venango and Warren counties, P. L. 260; and act 22 March 1866, § 7, as to Allegheny county, P. L. 298. (0) See infra 56. |