Commonwealth v. Lennon, 172 Mass. 434

Commonwealth v. Lennon

172 Mass. 434 | Mass. | 1899

Holmes, J.

The validity of the ordinance is not questioned, ' nor do we see any ground for questioning it. The defendant justifies on the ground that he acted as a public officer, and in obedience to a writ of execution ordering him to cause one Halli*436day to have possession of the tenement from which the furniture was removed. But the fact that the defendant was a constable did not put him above the law, and the writ did not require him to disregard it. For if we assume that the defendant’s duty required him to remove the furniture irrespective of any request to him, Fiske v. Chamberlin, 103 Mass. 495, 496, see Scott v. Richardson, 2 B. Mon. (Ky.) 507, Witbeck v. Van Rensselaer, 64 N. Y. 27, 32, it did not require him to leave it upon the sidewalk contrary to the ordinance. There is no hardship upon the officer. He may store the goods at the owner’s cost, (Preston v. Neale, 12 Gray, 222,) and may require a bond of indemnity from the party who calls upon him to serve the writ. Clark v. Parkinson, 10 Allen, 133, 136. Hamberger v. Seavey, 165 Mass. 505, 507. See Commonwealth v. Miliman, 13 S. & R. 403.

Verdict to stand.