CONSERVATORS OF THE PEACE.

Conservators of the peace,

1 | Their powers,

Act of January 7, 1818. R. C. ch. 74.

1. 1. The judges of the court of appeals, superior courts of chancery and general court, shall be conservators of the peace throughout the commonwealth, and the justices of the peace in each county and corporation shall be conservators of the peace(b) within their several counties and corporations respectively; [and the marshals of the superior courts of chancery shall be conservators of the peace within their respective districts. Act Feb. 26, 1816, c. 8, R. C. ed. 1819, c. 66, § 66.] And the said judges and justices [and marshals] within the limits aforesaid, respectively, shall have power to demand of such persons as are not of good fame, (d) sufficient surety and mainprize of their good behaviour. (a) 1789, c. 30, 13 Stat. Larg. 41; 1792, c. 69, R. C.(c)

(b) It cannot be doubted, that it is within the power of every conservator of the peace, to recognize a person who has committed an outrage on the peace of society, to appear before the next court, to answer an indictment to be preferred against him, and to recognize the witnesses also, to appear and testify. Brockenbrough, J. in deliv. op. of court in Wortham's case, 5 Rand. 675, gen'l ct. Nov. T. 1827.

(d) See 34 Ed. 3, c. 1, 1 Hawk. ch. 61, § 2, 3, 4.

(a) A justice of the peace is authorized to require surety of the peace for a limited time, according to his discretion, and need not bind the party over to the next sessions

only. Willes v. Bridger, K. B. Hil. T. 1819, 2 Barn. & Ald. 278.

For mode of proceeding on a scire facias on a forfeited recognizance to keep the peace, &c. See Rex v. Wiblin, 2 Car. & Payne, 10, and Reps. note; and Governor v. Brown &c. 2 Virg. Cas. 351.

A constable may ex-officio, and without warrant, arrest a breaker of the peace, in his view, and bring him before a justice. Taylor v. Strong & al. 3 Wend. 384, and authorities there cited.

(c) A recognizance is a judicial act. Arg. Noy. 157, in the grand case of the habeas corpus, Vin. Abr. vol. 15, (A) § 4, p. 1.

1. § 1. The justices in the several counties and corporations(1) within this commonwealth shall, as heretofore, [§ 15, Cons. Virg.] biennially in the month

(1) The court of hustings of the city of Richmond, authorized to appoint one fit and proper person to serve as constable for said city for one year, to give bond in the penalty of $5000. See Act of Feb. 18, 1820, c. 112, Ses. Acts, 1819-20, p. 90-to be entitled to the same fees, and have and exercise the same powers and duties, and be subject to

the same pains and penalties as are prescribed by law to other constables-said constable authorized, with the approbation of the court, to appoint a deputy or deputies, who may at any time be removed from office by the court, for good cause to them shewn. Act Feb. 6, 1808, c. 94, § 4, Ses. Acts, 1807-8, p. 79, 80.

Act of January 19, 1818–January 1, 1820. R. C. ch. 84.

of June, or as soon thereafter as shall be convenient, appoint so many fit and proper persons as they may think necessary, to serve as constables within the same for the term of two years. [No person shall be appointed a constable by any court of this commonwealth, unless the court by whom such constable shall be appointed, shall be of opinion, and shall enter of record at the time of his appointment, that he is a man of honesty, probity and good demeanour ;(2) and, if any court shall refuse to make such entry, such refusal shall be entered of record, and such applicant shall not be appointed a constable at any time thereafter, unless at the regular biennial term prescribed by law for the appointment of constables. (Mar. 2-Apr. 1, 1821, c. 32, § 5.)] And every person so appointed shall, at the next court to be held for his county or corporation, take the oaths prescribed by law,* and enter into bond with two approved securities, in such penalty, not being less than five hundred dollars, nor more than fifteen hundred dollars,† as such court in their discretion shall direct, payable to the governor and his successors, with condition that he will well and truly discharge X the duties of the office of constable, in the county or corporation for which he has been so appointed; at the end of every two years, the justices in each county and corporation, as aforesaid, shall make a like appointment; and the person so appointed a constable, whether he has before served or not, shall in like manner take the oaths prescribed by law, and enter into bond with security, as aforesaid; in case of the death, resignation or removal of any constable, the justices shall in like manner make a new appointment for the purpose of supplying the vacancy; and the person so appointed a constable shall take the oaths prescribed by law, and enter into bond with security as aforesaid; every such bond shall be recorded in the court wherein it shall be executed, and may be sued in the same manner as sheriffs' bonds; if any person so appointed shall perform any of the duties of his office, before he takes the oath, and enters into bond, as aforesaid, he shall forfeit fifty dollars for the use of the county or corporation in which he resides, to be recovered by action of debt in the name of the governor for the time being, with costs: Provided, nevertheless, That nothing herein contained shall be construed to prevent any justice of the peace from appointing any person to act as constable in criminal cases, as heretofore. Jan. 21-May 1, 1803, c. 8; Jan. 10, 1807; c. 98, ed. 1808.‡

2. § 2. The several county courts within this commonwealth shall, from time to time, when they appoint constables, lay off their respective counties into so many districts as they may deem convenient, and assign one or more constables to each. [The said districts so laid off shall not be changed or altered, unless by the order of the same court, composed of the same members, who shall have so laid off their said county into districts, or unless the said order shall be rescinded or altered by a court composed of a majority of the acting justices of such county. (Mar. 2-Apr. 1, 1821, c. 32, § 4.)]

(2) The law requireth that every constable be idoneus homo, that is, apt and fit for the execution of said office; and he is said in law to be idoneus, who hath honesty to execute his office truly, without malice, affection or partiality: Knowledge to understand what he ought to do, and ability, as well in substance or estate, as in body, that so he may intend and execute his office diligently, and not through impotency of body or want, to neglect the place. Dalton's Just.

P. 58.

No man that keeps a public house, ought to be a constable. Holt, C. J. 6 Mod. 42, in Regina v. Dyer.

t See Act Feb. 16, 1824, c. 22, § 2, Ses. Acts, p. 27-increasing the penalty to not less than two, nor more than ten thousand dollars. Sup. R. C. c. 137, § 2, p. 198.

The warrant may be directed to the sheriff, bailiff, constable, or to any indifferent person by name, who is no officer; for the justices may authorize any one to be his officer, whom he pleases to make such, yet it is most advisable to direct it to the constable, &c. for no private person is compellable to serve it. Hawk. Bk. 2, c. 13, § 27; see 1 Geo. 4, c. 37, § 2.

Act of January 19, 1818-January 1, 1820. R. C. ch. 84.

And it shall be the duty of every constable to confine himself in the service of warrants and executions to the limits of his district, and return all warrants to some place within his district. And every constable who shall execute any warrant, or levy any execution contrary to the provisions of this act, shall forfeit and pay the sum of five dollars for every offence, to be recovered against such constable and his security or securities, his, her or their executors or administrators, before the court of the county wherein such constable was appointed, by motion on ten days previous notice. Jan. 10, 1807, c. 98, ed. 1808.(c)

3. § 4. On the death, resignation, removal, or refusal to act, of any constable, assigned by the court of any county to any particular district thereof, it shall be lawful for any other constable of such county to perform the duties of a constable within that district where such death, resignation, removal or refusal may have happened. Feb. 3-May 1, 1809, c. 12, ed. 1812.

4. § 5. All executions awarded or judgments rendered by any justice of the peace, for debt, detinue or trover, shall be directed to some constable of the county or corporation, who shall levy and return the same agreeably to the provisions of this act.(d) Ibid. [See tit. JUSTICES OF PEACE, No. 13.]

5. § 3. It shall not be lawful for any sheriff or deputy sheriff to serve any warrant issued by any justice of the peace, requiring any person or persons to appear before any justice of the peace, to answer in any suit for debt, detinue or trover, which may be cognizable and determinable by any one justice of the peace; but such warrant shall be directed to and served by some constable, agreeably to this act. Ibid.

6. § 9. It shall be the duty of every constable levying an execution, to advertise the property taken by him, at some public place in the neighbourhood, at least ten days previous to the sale thereof. Jan. 21-May 1, 1803, c. 8, ed. 1808.(a) [See post. tit. EXECUTIONS, No. 17.]

7. § 7. The fees allowed by law to constables, and due for services rendered to persons residing out of the county or district, in which such constable hath been appointed, shall be hereafter delivered by them to the sheriff or

The plain rule, as laid down by the writers on criminal law, and recognized by Best, J. and the court, in The King v. Weir et al. 1 Barn. & Cress. 288, is, that where a warrant is directed to any one by name, he may execute it any where within the jurisdiction of the magistrate; but where it is directed by the description of an office, then the officer cannot act beyond the precincts of his office. Bayley, J. in delivering his opinion, said, "it is of great consequence that magistrates should be careful to direct their warrants in such a manner, that the parties to be affected by them may know, that the persons bearing the warrants are authorized to execute them. The importance of giving such information will be easily admitted, when it is remembered that according to the extent of the officer's authority, his death may be murder, manslaughter, or perhaps justifiable homicide. A magistrate has power to direct his warrant to a particular person by name, and then the latter has authority co-extensive with that of him who confers it. But a warrant may also be directed to a person, not by his name as an individual, but by the description of his official character; and such a

direction may be limited to the officers of a single parish, [or district,] or may extend to all the officers of a county. In the latter case it is clear, that the instrument must be construed reddendo singula singulis, and the authority delegated to such officer, is limited to the district for which he is appointed;"-and see Blatcher v. Kemp, 1 Hen. Blac. 15, in note; Reg v. Tooly, 2 Ld. Raym. 1296; see 5 Geo. 4, c. 18, § 6.

(c) See "an act concerning the constable for the city of Richmond, and for other purposes." Feb'y 19th, 1812, c. 91, § 1, 2, Ses. Acts, p. 122; [see Just. Peace, No. 7.]

(d) See "an act authorizing constables to require indemnifying bonds." Feby 4, 1831, c. 26, Ses. Acts, p. 86, and post. tit. Executions, No. 27, note (1); see "an act prescribing the mode of trying the title to property, taken under executions upon warrants." March 19, 1839, c. 68, p. 43.

(a) A constable who levies on property by virtue of a justice's execution, may sell the same after the expiration of his term of office. Alderman v. Share, 7 Wend. 220. The same rule being applicable to constables that governs sheriffs.

Act of January 19, 1818–January 1, 1820. R. C. ch. 84.

other officer of the county or corporation, by whom the same shall be collected and accounted for, in the same manner as is provided in the case of sheriffs' fees; and, in case of failure on the part of such sheriff or other officer to collect and account for the same, they shall be liable to motion for the same, in the same manner as is provided in the case of other fees put into their hands for collection: Provided, however, That nothing herein contained shall be construed to prevent a constable from collecting or distraining for any fees due him within the precinct of the county for which he is appointed. Ibid. [See tit. FEES, No. 22.]

8. 8. Every constable who shall demand and receive any fee or compensation, (b) when by law he is not entitled to any, or shall demand and receive more than he is allowed by law, shall forfeit and pay to the party injured three dollars for every offence; and shall moreover be liable to double the sum so improperly received; to be recovered on motion in the court of the county where such constable has been appointed, against him and his security or securities, his, her or their executors or administrators, by motion on ten days previous notice. Jan. 10, 1807, c. 98, ed. 1808. [See tit. Justices of the PEACE, No. 15, note.]

Act of February 18, 1826, ch. 18, Ses. Acts 1825-6, p. 20. Sup. R. C. ch. 121, p. 179.

1. § 1. In proceeding against any person or persons, in any court of record within this commonwealth, for any contempt of such court, or of any judge or

(a) See The Com'th v. Dandridge, gen'l ct. June T. 1824, 2 Virg. Cas. 408, 446; Ex parte Kearney, 7 Wheat. 38.

A commitment for a contempt, being a commitment for punishment, must be for a time certain, and not till the offender be discharged by due course of law. The King v. James, 5 Barn. & Ald. 894. A justice of the peace committing for a contempt of himself in his office, cannot commit for punishment, unless by warrant in writing. Mayhew v. Locke, 7 Taunt. 63.

A circuit superior court orders a subpæna for witnesses to attend the grand jury, then in session, and they intentionally conceal themselves from the sheriff to prevent the process from being served, and so prevent it from being served, till the grand jury is discharged. Held, on the construction of this stat. not a contempt punishable by the court in a summary manner. Deskins's case, 4 Leigh, 685.

Act of February 18, 1826, ch. 18, Ses. Acts 1825-6, p. 20. Sup. R. C. ch. 121, p. 179. justice thereof, it shall be the duty of the judge, judges or justices, before whom such proceeding is pending, to sign and seal any bill of exceptions, tendered to the court during the progress thereof; provided the truth of the case be fairly stated in such exceptions: And thereupon the said exceptions shall, by the clerk of the said court, be entered in the record of such proceeding, and become, to all intents and purposes, a part thereof. Error apparent on the record, in any judgment for contempt, rendered by any court other than the court of appeals, or in the proceedings on which such judgment is rendered, may be corrected by writ of error; and to that end, the writ shall lie to the county and corporation courts, from the superior courts of law; to the superior courts of law, from the general court; to the general court and superior courts of chancery, from the court of appeals; or any judge of the said courts respectively, in vacation: Provided, That such writ, from the court of appeals to the general court, shall not extend to any judgment affirming or reversing a judgment of a superior court of law.

2. § 2. When judgment shall have been rendered against any person for a contempt, and there shall be any thing in the nature of the offence, or condition of the offender, strongly recommending him to mercy, the executive shall have power to pardon the offence, and remit the punishment, whether corporal or pecuniary, either wholly or in part.

3. § 3. Nothing in this act contained shall be construed to extend to any proceeding by attachment, to compel the performance of any decree or judgment, or to enforce obedience thereto.

[See act of April 16, 1831, Sup. R. C. c. 109, § 25, p. 143-144, prescribing the power of the courts in issuing attachments and inflicting punishments for contempts. Ses. Acts 1830-31, c. 11, § 25.]