Brunott v. M'Kee

Though the Act of 1834 speaks of constables as township officers, they are not strictly so; nor does the section which requires them to file a copy of their oath of office with the town clerk, where there is one, seem applicable to them. They are nominated by the township, it is true; but they are also appointed by the court, which is not the case with any other township officer: and their duties are also of a mixed character, a part of them pertaining to the township and a part to the county. They have from time immemorial been sworn into office by the court, and there has not perhaps been a single instance in which one of them has filed a copy of his official oath with a town clerk. Why should he do so when the oath is already on record ? The object of the Act was to provide a place for the deposit of the evidence of qualification; and though that might be necessary in the case of the others, it would be superfluous in the case of a constable. But the section is at best merely directory, as it does not say that the acts of the officer shall be void for want of compliance with it; for in Kingsbury v. Ledyard, (2 Watts & Serg. 37), it was held that the writ protects the officer himself: and where his act is valid it is proper that the sureties be responsible for it. But it does not appear in the case stated that there was in truth a town clerk for the township; and the defendants would be liable under any construction. The remaining argument is disposed of by Carmack v. The Commonwealth, (5 Binn. 184), in which the sureties of a sheriff were liable for the act of the officer in levying the goods of a stranger.

Judgment affirmed.