Inhabitants of Nottingham v. Giles

| N.J. | Sep 15, 1806

Kirkpatrick C. J.

— This case is different from that of Woolwich; by the pleadings in this case, the question is brought fairly and fully up; and it appears that the bond was taken by colour, and under pretence of the act of Assembly, which has not been pursued, but new conditions added. In my opinion, the defendants must have judgment.

Rossexx, J. — Concurred. Pennington, J.

— Giles was elected constable of the township of Nottingham, at an annual town-meeting, and went in conformity to the law, with his sureties, before the township committee, to give a bond of security, required by the act of Assembly in such cases. The committee, acting under the law, and by colour and pretence thereof, require of him a bond, different in form and substance from that required by the law, exacting conditions to which the statute is a stranger; this bond, in my opinion, is void. The counsel for the plaintiffs, however, very truly says, that a bond may be good in part, and bad in part; and that the court will support the good, and reject the bad part. It must, however, be in those cases where the good can be separated from the bad; in this case, the good and bad are so blended and interwoven, that it is impossible to separate them. If there were a number of independent conditions, one of which was in conformity to the act, I incline to think, if the bond was voluntarily entered into, that the bad might be rejected, and the one made in conformity to the statute, supported. It makes no difference in this respect, whether the bond is taken under the statute, or at common law', unless the statute, like that of 23d Henry the 6th, contain negative words. It was on the construction of that statute, that Lord Hobert made the observations attributed to him by justice Twisden — that the statute was like a tyrant — wherever it came, it made all void; hut that the common [*] law was like a nursing father, that where it came, it only made void that which was bad, hut preserved that which was good. The statute 23d Henry 6th, prescribes the form of bail bonds to be taken by sheriffs, and expressly enacts, that obligations taken in any other form, by colour of their ofSce, shall he void. Not so with the act authorizing the township committee to take bonds of constables; yet, in this case, the impossibility of separating the good from the bad, renders all void.

By the Court. — Judgment for the defendants.^*

(a) , (a) Vid. Rev. 644 The form now is, “ shall truly and faithfully perform all the duties enjoined on him, as constable of said township. Ed .