recovered in like manner, upon motion, as other moneys are to be recovered of constables. (h) 1820. IN FORCE FROM ITS PASSAGE. AN ACT to amend the law concerning Constables: Approved February 4, 1820. May be ruled by his securi SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That when the security or securities of any tes to give constable in this Commonwealth, may think himself or themselves counter securiliable to sustain any loss or damage in consequence of such security, and how. tyship, the county courts respectively, on the motion of any such security, shall rule such constable, to give counter security, ten days' notice having been given in writing. To be dis SEC. 2. That if any constable shall fail to give such security, being ruled thereto by the court, the court shall forthwith dismiss missed if he fail said constable from office. (h) The above act is still in force, the act of 1815 being only temporary, has expired. A justice of the peace has not jurisdiction of a motion against a constable for failing to return an execution within the twenty days: the circuit court alone has jurisdiction.-Lane v. Young, 1 Litt. 41; Jennings v. Jones, 4 J. J. Mar. 216. See Wilson, &c. v. Slaughter, 3 J. J. Mar. 593. 2. The above act, by giving ten per cent. damages for a failure to return an execution in twenty days, repeals so much of the act of 1811 regulating motions against sheriffs and other of ficers, and giving thirty per cent damages against them, as applies to constables.—Wilson, &c. v. Slaughter, 3 J. J. Mar. 594. 3. On motion against a constable and his sureties for failure to return execution, death of one of the defendants may be suggested, and abatement as to him entered.-Ibid. 4. On a motion against constable and securities for failing to return an execution which was endorsed to take Commonwealth paper, judgment should not be rendered for paper, but should be for the value thereof, and ten per cent. damages thereon.-Trover, &c. v. Sharp, 4J. J. Mar. 79. 5. On a motion against a constable and his securities for not returning an execution within twenty days, interest should not be given on the amount of the execution. The constable is only liable, on such motion, for the amount due at the time of his default and ten per cent. damages thereon.-Ibid, 80; Clifford v. Cabiness, 1 Dana, 385; Pitman v. Courts, 6 J. J. Mar. 90. to do so. 6. "The above act authorizing a motion against a constable for failing to return an execution within a prescribed time, was enacted for the security and indemnity of bona fide creditors, by stimulating constables to a faithful discharge of their official duties, lest their wilful negligence or delay may subject those for whom they act, to actual inconvenience and damage. But the statute would be perverted and made an instrument of oppression and fraud, were it to be applied indiscriminately and inexorably to all cases in which a constable may have failed to return an execution within the prescribed period. In a motion allowed by the statute, the recovery cannot be graduated to the actual damage, nor can it be limited, as it might be in a common law suit on the official bond, to nominal damages for a mere technical breach of official duty, which may have occasioned no actual loss, but it must be for the whole penalty denounced by the law; and therefore, whenever the enforcement of the whole penalty would be inconsistent with the end and policy of the law, there should be no recovery. For example, if an execution creditor shall have received his debt, either before or after the return of his execution, or if the execution shall have been satisfied by a sale of property to the creditor, surely he should not be permitted to coerce from the constable and his sureties the whole amount of the execution and the ten per cent. damages for a failure to return it within the time prescribed by the statute. Of this there can be no doubt."-Sharp v. Trover, &c. 7 J.J. Mar. 277. Courts to dis trict counties, constable to SEC. 3. That the several county courts in this Commonwealth, shall, at or before the July term of their respective courts next, lay and appoint one off their respective counties into districts not exceeding seven, and appoint one constable in each district, and no more; (i) and that each county town, shall compose one additional district, and no more; in which, not more than two constables shall be appointed in the discretion of the court. each district. County towns may have two constables each SEC. 4. If any county court shall fail to lay off said county into If the county districts, and appoint a constable in each, as is hereby directed, the Courts neglect clerk of said court shall certify to the next circuit court of said county such failure, whose duty it shall be to award a mandamus against the justices of the county court, and cause to be executed the provisions of the third section of this act. to district their counties, &c. a mandamusmay issue. Warrant in civil cases not to be returned out of the dis trict in which defendant re sides except in certain cases. SEC. 5. No warrant in any civil suit shall be returned in any other district than that in which the defendant resides, unless the defendant shall desire otherwise in writing; and whenever a warrant is against two or more defendants residing in different districts, the same may be returnable in either of said districts: Provided however, That where a defendant resides out of the county, in which the warrant is served on him, it shall be the duty of the constable serving the warrant, to return the same before a justice of the peace within the district in which the warrant shall be served. SEC. 6. Every constable appointed under the provisions of this Constables to act, shall execute bond with approved security in open court, in the penalty penalty of not less than two thousand dollars, at the discretion of the court, subject to the like rules, limitations and restrictions as execute and thereof. bond He and his securities liable for money collected without heretofore. SEC. 7. That any constable receiving any writing obligatory or account for collection, and [who] shall collect the same without execution, the same proceedings may be had against him and his securities, as could, or might be had against such constable and his securexecution, and ities for moneys collected by him on execution; (k) and he shall not mission thereon be entitled to any commission for the same. to have his com (1) The appointment of a constable for the county generally, without assigning him any particular district, although not strictly regular, is not void.-Chambers v. Thomas, 1 Litt. 268; Ibid, 3 Mar. 536. (k) Before the passage of the above act, there was no law subjecting a constable and his sureties to an action on their bond for failing to account for bonds, notes, or accounts received and collected without suit, and this act is prospective only.-Jones v. Commonwealth, &c. 2 Litt. 360. 2. If a constable collect the amount of an execution after the return 'day thereof, by virtue of a payment by debtor, and endorse the same on the execution, the act is unofficial, and he will not be liable as a constable; but the creditor may affirm the act, and by an appropriate action make the constable responsible.-Stephens v. Boswell, 2J. J. Mar. 29. 3. This act is remedial and should be liberally construed, and the above section, taken in connexion with the two sections of the act of 1803, (p. 415-6 ante,) will authorize a suit on the bond against a constable and his securities for Commonwealth paper collected by him. The breach in such case should charge the collection and failure to pay over paper; and if the breach is for money, it will not be supported by proof that SEC. 8. No constable shall hereafter serve any warrant, or levy any execution or attachment, wherein he has had, or may have an interest in the debt or demand whereon the same shall be founded, under the penalty of ten dollars for every such offence, recoverable as like sums are, by any person who may sue for the same. SEC. 9. No person shall be appointed a constable who is not twentyone years of age, nor shall a constable hereafter be appointed unless a majority of the justices of said county are present. SEC. 10. Hereafter no sheriff or deputy sheriff, or collector of the revenue, shall be appointed to the office of constable, or serve any warrant in a civil case, or levy an execution issued on a judgment of a justice of the peace in such case: (1) Provided, That nothing herein contained, shall prohibit any sheriff or deputy, from serving any warrant of attachment, or levying an execution, or executing any order of sale thereon, or from executing any warrant of forcible entry or detainer, for executing any order for restitution thereon. All to go out of office when districts are laid Constables to SEC. 11. So soon as the county courts shall lay off their respective counties into districts, the offices of the several constables in this Commonwealth, shall be, and are hereby declared vacated; and off. appointments shall be made therein under the provisions of this act. SEC. 12. If any constable appointed under this act, shall fail to state in the body of any receipt by him given to any defendant or ceipts to defendefendants in an execution, the amount actually paid, he shall forfeit and pay to such defendant or defendants, the sum of ten dollars, recoverable as like sums now are. SEC. 13. The several constables herein directed to be appointed, shall have full power and authority to levy any execution or attachment, or to serve and execute warrants or other process any where within the limits of his county. SEC. 15. Any constable collecting money by virtue of any execution or order of sale, issued from any justice of the peace of this Commonwealth, and failing to pay the same over when called on, paper was collected.-Scott, &c. v. Common monwealth for Crozier, &c. 5 J. J. Mar. 644. 4. This section was intended to have an extensive remedial operation for the purpose of securing honest men against the chicanery of insolvent and dishonest constables, or the losses which might result from their misfortunes, if honest, and therefore should receive a liberal in terpretation. It embraces all writings obligatory of any description, which may come to the hands of a constable for collection, whether he receive them from the obligees or their agents, or take them in the course of business in pursuance of Jaw, or from another officer who may have taken state in their re dant the am'nt actually paid, and penalty for neglect. May execute process any where in the county. Motions may be made against them and their for securities them, without the knowledge of the obligee, but for his use. A replevin bond is a writing obligatory within the meaning of this section.-Finn v. Commonwealth for Wilson, 5J. J. Mar. 341. See the case of Scott, &c. v. Commonwealth for the use of Crozier, 5 J. J. Mar. 644-5. (1) The above section repeals the provision of the act of January 31, 1811, (see it, title RENT, post,) which authorized a sheriff to distrain under a distress warrant. And a replevin bond taken by him in virtue of such warrant, is invalid either as a cominon law or statutory bond, and may be quashed on motion.-M'Cormick v. Young, 3 J. J. Mar. 180. ed on execu tion or order of sale, before the justice who rendered the judgment, or in his absence, &c. before some other justice. money collect it shall be lawful for the party entitled to said money, to move against said constable and his securities before the justice of the peace who rendered the judgment; and upon his absence, resignation or removal from office, then the party aggrieved may move against said delinquent constable and his securities, before some convenient justice of the peace, by giving them ten days' notice in writing of the intended motion; which judgment shall be rendered agreeable to the laws now in force giving damages against delinquent constables. (m) 1821. IN FORCE FROM ITS PASSAGE. AN ACT to authorize the appointment of an additional number of Constables in certain counties: Approved October 29, 1821.-Session Acts, p. 247. SEC. 3. Be it further enacted, That it shall be lawful for any constable, where the justice of the peace in his district is interestof the district ed in the case, or related to either of the parties, or refuses, for where defend other cause, to act therein, to return the warrant and all other proant resides, Warrant may be returned out when the justice cess in any such case, before some other justice in said district, or therein is inter- in an adjoining district convenient to the defendant; and the justice ested, &c. shall take cognizance thereof, and proceed thereon as in other cases, to the same amount. Constable to reside in the precinct assign ed him, or va cate his office. IN FORCE FROM ITS PASSAGE. AN ACT to amend the law concerning Constables: Approved December 21, 1821. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That each constable within this Commonwealth, heretofore appointed, or who shall hereafter be appointed, shall reside within the precinct assigned him; and upon the failure or refusal of any constable to reside within the precinct assigned him by the court, the office of such constable shall be vacated for that cause; and the county court, where such vacancy shall happen, shall proceed forthwith to fill the same, in manner and form now prescribed by law. (m) An appeal lies to the circuit court from the judgment of a justice of the peace, given under the above section against a constable and his securities for money collected and not paid over, when the amount exceeds £5.--Craddock, &c. v. Patterson, &c. 1 Mon. 9. 2. Notice of a motion against a constable for not returning an execution in time, for bank notes, must state the exact date of the execution, and that it was for the bank notes.-Pitman, &c. V. Courts, 6 J. J. Mar. 91. 1822. IN FORCE FROM ITS PASSAGE. AN ACT allowing additional Constables and Justices of the peace to certain counties, and to provide for the future regulation of Constables' districts: Approved November 21, 1822.-Session Acts, p. 74. SEC. 12. From and after the first day of January next, it shall and may be lawful for the several county courts, to change, alter or modify any or all of the constables' districts in their said counties, and to increase the same to any number not exceeding twelve, and at all times thereafter, so to alter, modify and change said districts so that equal justice shall be done to each district-Provided, however, That no new district shall be made or old district altered unless a majority of all the justices of the peace for the county shall be present. County courts may divide their counties into twelve disdify and change the same. Majority of justices in commission must be tricts, and mo present. IN FORCE FROM ITS PASSAGE. AN ACT for the benefit of Jailers and Constables: Approved December 2, 1822. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That in all cases when any jailer or constable may have, or shall hereafter render any services to this Commonwealth, the payment of which is not provided for out of the Treasury of this State, the county court where such services may have been rendered, shall at their next court of claims levy the same. THIS act shall not be so construed as to change the law where any individual or individuals are bound for costs, unless the same cannot be made out of such individual or individuals. 1829. County courts to levy for constables & jailers for services, which are not paid out of the treasury. Proviso, IN FORCE FROM ITS PASSAGE. AN ACT more effectually to coerce the payment of money officially collected by sheriffs, constables and lawyers: Approved January 29, 1829.-Session Acts, p. 130. [The 1st and 2d sections relate to the mode of proceeding against constables and their securities for failing to pay over money, &c.; for a reference to it, see Index, head CONSTABLE.] SEC. 5. If a constable shall fail to pay over any money collected by him as constable, when legally demanded by the person entitled thereto, or his legally authorized agent, it shall be deemed a malfeasance in office, for which he shall be removed from office in the mode now prescribed by law. |