8 Johns. 69 | N.Y. Sup. Ct. | 1811
The act (Laws, vol. 1. 326, 327. 329.) declares, that “ if any constable, chosen, Uc. shall refuse to serve, it shall be lawful for the inhabitants of the town to supply such vacancy at a special town meeting, to be notified and held, Ue.; and that if the town shall not, with n 15 days next after such refusal, Uc. choose another, it shall be
These are the statute provisions relative to the subject, and the record states that the defendant below was appointed constable by three justices, in the form prescribed by the act; and the warrant recited that Laurence, one of the constables of the town had, for more than 15 days, refused to serve, and that the town had not appointed another in his stead, and that therefore they appointed the defendant.
To an action of trespass for serving an execution, the defendant below, as constable, justified under this appointment; and the court below then admitted testimony to prove that Laurence had not refused to serve, and the question brought up is on the competency of this proof.
This appointment is a judicial act, for the justices must first determine and adjudge that there is a vacancy in the office, and that the town neglected to fill it up. It is not traversable in such a collateral action. The appointment remains valid until it be set aside or quashed in the regular course, upon certiorari. It is certainly sufficient to justify the constable. He comes to the office by an appointment, regular, according to the forms of law, and made by a tribunal having jurisdiction in the case; and he is bound to accept, under a penalty. He is not to inquire, at his peril, into the validity of the act. It is sufficient that three justices have authority to make such an appointment in the given case. It would be intolerably oppressive to place the constable in the dilemma of subjecting himself to a grievous penalty, if he
Judgment reversed.
