O'Brien v. Annis

120 Mass. 143 | Mass. | 1876

Devens, J.

Upon the facts in this case, it must be deemed that Annis had commenced the service of the writ of execution before March 9, when he was elected to and accepted the office of constable for the second year. The execution delivered to him was only to be served by arrest of the person for want of goods, effects or credits to be exhibited by the trustees, and for want of property of the principal defendant which he could find. On the 14th day of January (the execution having been committed to him on the 12th) he made demand on the alleged trustees, and also search for the property of O’Brien. No return of the execution was made by him, but on February 28, the necessary affidavit having been made, the certificate of the magistrate authorizing an arrest of the person was appended tc the writ, and the arrest was made on March 11. The demand upon the trustees and the search for the property of O’Brien were acts which it was the duty of the officer to perform before making any arrest, even if the certificate authorizing him so to do had been appended to his process at the time he received it, and his performance of them constituted a commencement of the service of it. Having thus commenced, even if it be assumed that his office as constable under his first election was terminated by his second election and acceptance, he had still a right, by virtue of the first election and the bond given by him pursuant to the Gen. Sts. c. 18, § 61, to complete the service. It is a general rule of the common law that when an officer has once commenced the service of a process, he is entitled and even bound to proceed to its completion, although he may have been removed from or gone out of office. Clerk v. Withers, 1 Salk. 322. Welsh v. Joy, 13 Pick. 477. Capen v. Doty, 13 Allen, 262, and cases cited.

Even if the explicit authority given by the Gen. Sts. e. 17, § 68, to deputy sheriffs to serve all processes in their hands at the time of their removal from office is not in terms conferred upon constables in towns, yet, when in certain cases they are authorized to serve writs, they are invested, in making such service, with all the authority conferred on officers by the common law. Annis was not therefore a trespasser in completing the service of the writ in his hands by the arrest of O’Brien.

This view renders it unnecessary to consider whether the bond given by Annis at the time of his first election was a sufficient compliance with the Gen. Sts. e. 18, § 61, so as to authorize him to serve writs under his second election, even if no additional bond was filed. Exceptions sustained•