self of it by pleading it, or moving for a discharge from the arrest; but the officer, or others concerned, will not be liable to an action, unless they act maliciously. (k) The only exception I think of, is that of ambassadors, &c. with their servants, &c. whose arrest is, like one on Sunday, made void by statute.(7)

If it be necessary, after an arrest, the constable may confine the defendant in a house, or other place of security, or place him in the jail, (with the leave of the sheriff,) for safe keeping, a reasonable time, or for an hour or two, whilst he looks for assistance; or during a night, if the arrest is so late that he cannot get to the justice's before sun down; but in general, he is to take him by the most direct route, and in the most convenient time, to the justice who issued the warrant ;(m) and so on, if he be absent, &c. to the next justice.

The better opinion would seem to be, that a constable cannot serve a warrant in his own favor, though it would be otherwise of a summons.(n) Independent of any statutory provision to that effect, it is said that the constable may (and ought, if need be) take the power of the county, viz. what number of persons he shall think good, to aid him to execute in every behalf, the people's process, be it whatever kind; it being the people's commandment; and such as shall not assist him herein, being required, shall pay a fine to the people; and, in such case, the constable may command, and ought to have, the aid and attendance of all gentlemen, yeomen, husbandmen, laborers, tradesmen, servants, and apprentices, and of all other such persons, being above the age of 15 years, and that are able to travel. (0) And, in such case, they are not appointed any number, but it is referred to the discretion of the constable, what number he will have to attend upon him, and in what manner they shall be armed, weaponed, or otherwise furnished.(p) But it is now provided by statute,(9) that whenever a sheriff, or other public officer, authorized to execute any process delivered to him, shall find or have reason to apprehend that resistance will be made to the execution of such process, he shall be authorized to command every male inhabitant of his county, or as many as he shall think proper, to assist him in overcoming such resistance, and, if necessary, in seizing, arresting and confining the resisters, their aiders and abettors, to be dealt with according to law. The officer

(k) Vid. cases cited 1 Tidd, 183. Cowen, 436, 437. 3 Wen. 202, 204. Doug. 671. Vid. ante, 505.

(1) Id. Ante, 508, 509. (0) Dalt. Sheriff, 354, 355. Ritson's (m) Griffith's Treatise, N. J. 63. Vid. Const. 2d ed. 40.

10 Wen. 514.

(n) Cro. Car. 416. 4 John. 486. 2

(p) Dalt. Sheriff, 355.

(q) 2 R. S. 359.

is to certify to the court issuing the process, the names of the resisters, their aiders and abettors, in order that they may be proceeded against for a contempt of court. Every person commanded by the officer to assist him, who shall refuse, or neglect to obey, without lawful cause, shall be deemed guilty of a misdemeanor, and subject to fine and impris

onment.

Under this statute it has been held, that a person acting in aid of an officer and by his commandment, in overcoming resistance to the execution of process, is a trespasser if the officer be not justified by the process; as where, on an execution against A., property is attempted to be taken from the possession of B., who resists the officer, and a by-stander, commanded to assist, forcibly lays hands upon B. to overcome his resistance, if it turns out that the property belongs to B., the by-stander is liable for an assault and battery. The by-stander obeys at his peril; if the officer has authority to do the act, for the doing of which aid is required, the by-stander is bound to obey, and is justified, and if he refuses or neglects, is guilty of a misdemeanor. On the contrary, if the officer has no authority to do the act, the by-stander is not bound to obey, and if he yields obedience, is a trespasser.(r)

SECTION III.

OF THE SERVICE AND RETURN OF AN ATTACHMENT.

This is pointed out by the statute,(s) which provides that the constable to whom the attachment shall be directed and delivered, shall execute the same at least six days,(1) before the return day; and shall attach, take into his custody, and safely keep, such part of the goods and chattels of the defendant, as shall not be exempt from execution, and as shall be sufficient to satisfy the demand of the plaintiff. He is immediately to make an inventory of the property seized, and must if the defendant can be found in the county, serve a copy of such attachment and inventory, certified by the constable, upon him personally; if not so found, then a

(1) If a short attachment, it must be served at least two days before the time of appearance mentioned therein. Sess. Laws of 1831, p. 403, § 33.

(r) 10 Wen. 128. (s) 2 R. S. 163, § 31.

copy may be left at the last place of residence of the defendant; but if he have no place of residence in the county where the goods and chattels are attached, such copy and inventory are to be left with the person in whose possession the goods and chattels are found.(t)

The kind of goods which may be taken upon this attachment, the manner in which a levy is to be made, what acts amount to a levy, and the power of the officer in breaking doors to effect it, &c. are governed by the same rules in all respects, as are applicable to executions; and will be spoken of at large under that head.

Other points peculiar to the mode of serving and returning this process, will be noticed here.

1. On taking the goods, the constable is at his peril to see that they are safely kept. He is considered in the light of a bailee, and accountable to either party for ordinary negligence, by which either sustains an injury. This is upon the principle that the bailment is mutually beneficial, both to the bailor and bailee ;(u) though if they be lost or destroyed, without his fault, he is not accountable. (v) He is, therefore, to provide such convenient place for their safe keeping, as shall comport with his rights and duties in this respect.

But the statute provides, (w) that no goods attached by a constable, shall be removed by him, if a bond be given and delivered to such constable by any person, with sufficient surety, to be approved by the constable, in a penalty double the sum stated in the attachment to have been sworn to by the plaintiff, conditioned that such goods and chattels shall be produced, to satisfy any execution that may be issued upon any judg ment which shall be obtained by the plaintiff upon such attachment, within six months after the date of such bond. It is further provided, (x) that if any person shall claim any goods or chattels attached by a constable, he may, after such seizure, and at any time before execution shall have been issued upon the judgment obtained on such attachment, execute a bond to the plaintiff, with sureties to be approved by the constable, or by the justice who issued the attachment, in a penalty double the value of the property attached, conditioned that in a suit to be brought on such bond, within three months from the date, such claimant will establish that he was the owner of the goods seized, at the time of such seizure; and in case of his failure to do so, that he will pay the value of the goods so claimed, with interest. Upon either of these bonds being executed

Vid. Sess. Laws of 1831, p.

(t) Id. 404, § 36. (u) Ante, 56.

(v) 6 John. 9. Ante, 293.
(w) 2 R. S. 163, § 32.

(x) Id. § 33.

and delivered to the constable, he is bound to deliver up the property seized by him, to the obligor in such bond. (y)

It is worthy of notice, in regard to the bonds which are thus authorized to be executed, and upon the execution of which the property attached is to be delivered up, that in the first case, the bond is to be to the constable, and in the last to the plaintiff. In the former case, also, the bond is to be "with sufficient surety;" in the latter, "with sureties." Within the principle of the case of Smith v. McFall,(z) the constable should require, in the latter case, at least two sureties. The constable has a discretion to exercise, as to the sufficiency of the security to be taken; and will undoubtedly be protected, if he exercise it in good faith. It cannot be doubted, that any man reputed to be in good circumstances, and apparently of ample property to pay the penalty, being, at the same time, a householder of the county, would answer to the description of sufficient surety, within the spirit of the act; and, in such case, the constable would be justified in taking such bond, even though the surety should in the end prove insolvent. But the constable would, on the other hand, certainly be liable in an action on the case, for the plaintiff's loss, should he accept of a man whom he knew to be, or who was reputed to be in doubtful circumstances; and in such case very slight proof of insufficiency, would be enough to throw the burthen upon the constable, of showing that he acted with due caution; for the security was either known to him, or he ought to have taken the proper time to inquire. (a) Where the surety or sureties offered, are strangers, to the constable or justice, or if he is unacquainted with their circumstances, or doubts their sufficiency, he should, for the purpose of ascertaining the fact, administer an oath to the person or persons so offered. (b) If he do this, and the surety prove his sufficiency, the officer cannot be held liable, for he has done all the law requires of him.

The bond authorized by the section of the statute first above cited is to be in the penalty of double the sum sworn to by the plaintiff; the penalty of the claimant's bond is to be double the value of the property attached.

FORM OF BOND TO PREVENT THE REMOVAL OF GOODS ATTACHED.

Know all men by these presents, that we RICHARD ROE and JOHN SMITH, of the town of Saratoga Springs, in the county of Saratoga, are held and firmly bound unto OLIVER H. LOCKWOOD, in the sum of

(y) 2 R. S. 163 § 34.

(z) Cited in Grah. Prac. 2d ed. 890.
(a) Vid. Bull. N. P. 60.

(b) 2 R. S. 455, § 9, specially authorizing an oath to be administered by the officer in such a case.

dollars, (double the sum stated in the attachment to have been sworn to by the plaintiff,) to be paid to the said OLIVER H. LOCKWOOD, or to his certain attorney, executors, administrators or assigns; to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the 1st day of February, 1840.

The condition of this obligation is such, that if certain goods and chattels, to wit, one double lumber waggon, one plough, one saddle, &c. (enumerate all the articles attached,) which have been seized by the above named OLIVER H. LOCKWOOD, by virtue of an attachment issued by RANSOM COOK, Esq. in favor of JAMES JACKSON, against the above bounden RICHARD ROE, shall be produced to satisfy any execution that may be issued upon any judgment which shall be obtained by the plaintiff upon the said attachment, within six months after the date hereof, then this obligation to be void, otherwise of force.

RICHARD ROE, [L. S.]
JOHN SMITH, [L. S.]

Sealed and delivered
in presence of

JOHN DOE.

The surety in the bond is to be approved by the constable; and although the statute does not require that his approval should be written or endorsed on the bond, yet it would be well that this should be done; and, without doubt, an acceptance of the bond without objecting to the sufficiency of the surety, would be deemed an approval. This approval, if in writing, may be in the following form:

I approve of JOHN SMITH, as surety in this bond. February 1st, 1840. O. H. Lockwood, Const.

FORM OF BOND BY CLAIMANT OF PROPERTY ATTACHED.

Know all men by these presents, that we, JOHN SMITH, JAMES Brown, and JOSEPH TAYLOR, of the town of Saratoga Springs, in the county of Saratoga, are held and firmly bound unto JAMES JACKSON, in the sum of

dollars, (double the value of the property attached,) to be paid to the said JAMES JACKSON, or to his certain attorney, executors, administrators or assigns; to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the 1st day of February, 1840.

Whereas certain goods, to wit, one double lumber waggon, one plough,