Stat. 1795, c. 41, s. 3.

May serve writs, etc.

sued for do not exceed seventy dollars.

collectors, so to be chosen, shall refuse to serve, or if no collector shall be chosen, then the constable or constables of such town, or district, shall collect and gather such rates and taxes.

III. Power of constables relative to the service of writs and warrants.

Any constable in any town or district within this comwhere the damages monwealth, is authorized and empowered to serve upon any person or persons in the town or district to which he may belong, any writ, summons, or execution, in any personal action, where the damage sued for or recovered shall not exceed seventy dollars, and return thereof to make to the court to which the same may be returnable.

Ibid. 1789, c. 26, s. 1.

May serve writs of replevm where the sheriff is a party.

Ibid. 1795, c. 68, s. 4.1

Power of constables in the execution of writs and warrants.

Stat. 1786, c. 38.

Stat. 1791, c. 58, s. 12.

Stat. 1798, c. 33, s. 2.

So where the sheriff or his deputy is a party to a writ of replevin, the writ, in cases where the sum does not exceed twenty pounds, may be directed to a constable, and by him be executed.

So, any constable of any town or district within this commonwealth, shall have authority, in the execution of the warrant or writ to him directed by lawful authority, to convey, as well any prisoner or prisoners, as things that they may have taken into their custody, either to the justice issuing such warrant or writ, or to the common jail or house of correction of the county where such constable is an inhabitant, according as in the writ or warrant may be directed.

IV. Their duty to notice and inform of certain offences.

1. It is the duty of constables to make the proclamation to rioters, prescribed in the riot act ; and to use their best endeavours for their dispersion.

2. They are also bound to prosecute for any breaches of the sabbath act.

3. It is also the duty of this officer, in case any person shall profanely curse or swear in his hearing, forthwith to give information thereof to some justice of the peace

of the county wherein the offence may be committed, in order that the offender may be taken, convicted, and punished for the same.

4. It is made the duty of constables to complain of those who keep implements of gaming, and suffer gaming to be carried on in their houses or yards.

Thus much for the general power and duty of constables. They have other duties and powers which will be incidentally noticed under other titles.

Stat. 1798, c, 20, s. 4.

TITLE XXXVI.

Stat. 1784, c. 41, s. 2.

CONTINUANCE.

1. In what case the defendants are entitled to a con tinuance, where the sheriff sues the inhabitants of his county for an escape which happens through the insufficiency of the jail.

2. Of a defendant's right to a continuance, who is sued, as surety, on a probate bond.

3. Provisions for continuances, where the defendant is out of the commonwealth, at the time of the service of the writ.

4. A defendant's right to a continuance, when sued as executor or administrator.

5. Of continuing indictments by reason of the penden→ cy of a civil action for the same cause, or by reason of the absence of a witness.

I. In what case the defendants are entitled to a continuance, where the sheriff sues the inhabitants of his county for an escape which happens through the insufficiency of the jail.

The sheriff may bring such action either in his own or the next adjoining county, at his election; and when it shall so happen that the suit shall be commenced in another county, and no court of sessions shall be holden within the county sued, between the time of the service of the writ, and the sitting of the court before which the action is brought, the cause shall be continued one term; and all advantages shall be saved to the defendants, as though they had appeared at the first term.

II. Of a defendant's right to a continuance who is sued, as surety, on a probate bond.

When any suit shall be brought on a probate bond, and the principal obligor named in the bond is living, and resident within the government, and shall not be named in the writ, or if named, shall not be attached or summoned to answer thereunto, it shall and may be lawful for the court, at the request of the surety or sureties that may be attached or summoned thereby, to continue the same cause to the next term, or to some distant day in the same term, if upon a consideration of the circumstances attending the suit, they shall determine such continuance reasonable or expedient; to the end such surety or sureties may purchase out a writ in such form as the same court shall direct, for attaching the property, securing the person, or summoning the principal to come in and become a party to the suit.

III. Provisions for continuances, when the defendant is out of the commonwealth at the time of the service of the writ.

Stat. 1788, 6. 20, s. 2.

1. In the case of a trustee process, it is provided, that Stat. 1794, c. 65, & 2, if the principal shall be absent from the commonwealth when such writ shall be served, the court shall continue In the case of a trus tee process. the action two terms, that he may have notice, unless the principal, after the service of the writ, and before the sitting of the court, shall have come into the commonwealth; in which case it shall be in the discretion of the court whether to continue the action or not.

of

Stat. 1797, c. 50, sec. 5.

the time of the service

inhabitant or resident

within the common

wealth.

2. It is also provided by statute, that when a suit shall be brought against the party defendant, and no one the defendants named therein shall, at the time of the Where the party at service thereof, be an inhabitant or resident within this of the writ was not an commonwealth, or then be present within the same, and shall not return before the time of trial; or if the action shall be grounded on a tort, and any one of the defendants shall so be absent, or not inhabitant or resident, and not return; then the court wherein such suit shall be pending, shall continue the same to the next term, on a suggestion of the fact being made on the record. And if the

Blanchard v. Wild.

1 Mas. Rep. 342,346.

above statute.

defendant whose absence was noted on the record, shall not appear by himself or attorney, and be so remote that the notice of such suit pending could not probably be conveyed to him or her during the vacancy, the said court may further continue the action to the next term, and no longer.

If the fact of defendant's absence from the commonwealth at the time of the service of the writ be not sugConstruction of the gested on the record, and plaintiff takes judgment at the first term, such judgment will be erroneous; for the evident object of the law is, that the defendant should have notice of the suit against him. The statute is positive as to one continuance, but leaves it in the discretion of the court, whether there shall be a second. And although the court are not bound to continue, unless the suggestion is made on the record, because without that they cannot know the fact; yet the plaintiff is bound to make the suggestion; for if he will take judgment, he does it at his peril.

3. When two or more are jointly obligated, by act of

Stat. 1797, c. 50, sec. D. law or agreement, and one or more of them are without

When only one of two

joint debtors is notified of the suit, there

ance.

the commonwealth, having property or estate, but no tenmust be one continu- ant, agent, trustee or attorney, within the same, the property or estate of those so without the commonwealth, may be attached, and the summons being left by the officer serving the writ, with those within the commonwealth, shall be deemed a legal service on those without the same Provided one continuance shall be granted, unless the plaintiff can shew that notice has been given to the person, so out of the commonwealth; in which case the court may proceed, at their discretion, without granting a continuance.

1788, c. 66, sec. 2.

IV. A defendant's right to a continuance, when sued as executor or administrator.

1. By statute it is enacted, that no executor or administrator shall be compelled, in any court of law, to defend