
    HUGG ET AL. v. THE INHABITANTS OF CAMDEN.
    1. The duties imposed upon a constable, by the delivery to him of a tax warrant for execution, are within the condition of his official bond; and if he collect money on the warrant and fail to pay it over, the bond may be put in suit against himself and sureties.
    2. If in such action the declaration assign as a breach of the bond, that the constable collected money and failed to pay it over to the inhabitants of the township, it will be error ;"the act making it his duty to pay over the tax money collected to the township collector.
    In error to the circuit court of the county of Gloucester.
    This was an action of debt upon a constable’s bond, brought in the circuit court of the county of Gloucester, by the inhabitants of the township of Camden against Hugg, a constable, and the other defendants his sureties, to recover money alleged to have been collected upon a tax warrant delivered to him by a justice of the peace. The bond was dated the 14th day of March 1839; the tax warrant was delivered to the constable on the 27th day of December 1839. The declaration was in the usual form upon the penal part of the bond; to which the defendants, after craving oyer of the bond and condition, pleaded general performance. The bond and condition are in the form prescribed by the 58th section of the Small Cause act, Elmer’s Digest, 286. The plaintiffs below in the replication assigned for a breach of the condition of the bond, “ that a certain return of the taxable inhabitants of the said township of Camden, who had made default in the payment of their taxes for the year, 1839, was duly made to Josiah Atkinson, one of the justices, &c.; which said return amounted to the sum of $1193.11; whereupon the said justice, then and there, on the 7th of December, 1839 aforesaid, issued his execution commonly called a tax warrant under his hand and seal against such persons so making default as aforesaid, amounting in the whole to the said sum of $1193.11; and then and there delivered the said execution, called a tax-warrant, to the said William Hugg, to be executed according to law; and the said plaintiffs in fact say, that although the said William Hugg, as such constable as aforesaid, collected the said several sums of money, amounting in the whole to the said sum of $1193.11, as aforesaid; yet the said William Hugg neglected and refused to pay over the said sum of money or any part thereof to the said plaintiffs, although often requested so to do, contrary to the form and effect of the said condition j” concluding with a verification and prayer for judgment in the usual form.
    
      To this replication there was a general demurrer and joinder. The demurrer was over-ruled by the Circuit Court, at December term, 1842, and judgment entered for the plaintiffs, the amount of the damages being confessed by the defendant. A writ of error was thereupon brought to this court. By the state of the case, any objection to the mode of entering the judgment, or to the amount thereof, was waived.
    
      Browning for plaintiffs in error.
    I. The execution of this tax-warrant is not one of the duties of a constable, mentioned in the condition of this bond. The duties of constable are extensive. 1st, Criminal— consisting of various duties as a conservator of the peace. See 1 Blac. Com. 356. 2d, Civil — being assigned in New Jersey by various acts of the legislature. See Griff. Treat. 501. N. J. Justice 199, where these civil duties of a constable are enumerated.
    These civil duties are of a two-fold character. 1st, As a ministerial officer of the court for the trial of small causes ; and these duties bear somewhat the same relation to this court, that those of the sheriff do to other courts, of which he is the ministerial officer, Elm. Dig. 276, § 3. 2d, Particular duties assigned by various
    acts of the legislature, collected in the treatises above referred to, viz : as an officer of the Orphans’ Court to serve all process and orders directed to him ; to extinguish fires in the woods; to summon and swear appraisers of goods distrained ; to collect taxes upon warrants delivered to him.
    The language of the condition of the bond is broad enough to embrace all these duties, not only civil, but even in relation to criminal matters. It will not be pretended that it extends to duties- which relate to criminal matters; the remedy against a constable for failing in these duties is by indictment, and fine and imprisonment. 2 Jac. Law Dict. tit. “ Constable.” This is a bond to secure redress for breaches of duties towards individuals, in regard to which damages can be estimated by money. It will not secure the payment of fines imposed upon him. For failure in the performance of his public duties, he would be liable to be indicted and fined ; but this is not secured by the bond, although so general in its language. The general words used in the condition of a bond are then to be restricted in their import. How far restricted ? In construing any particular enactment the context and subject matter are to be looked to, together with the reason and spirit of the law. The bond here prescribed is in the “ act constituting courts for the trial of small causes;” every section of which act relates to that court, unless this forms an exception. Many sections of this act prescribe the duties of constables in relation to this court, and speak of them as its ministerial officers. See sections 3, 6, 19, 21, 24, &c. It is in this statute and in this connection, that every constable is required to give bond, conditioned that he “ shall well and truly perform all the duties enjoined on him, as constable of said township.”
    The former act, 1798, Pat. 323, required constables to give bond, conditioned “ for the true and faithful performance of all the duties enjoined on him by that act.” This bond did not reach duties enjoined on the constables by the supplements to the small cause act, and therefore the alteration in phraseology of the condition of the bond. The duties of constable in the collection of taxes being in no wise connected with the court for the trial of small causes, a breach of these duties is not within the condition of this bond.
    That this bond was intended to secure individuals for breaches of duty towards them, capable of being estimated in and redressed by money, and not to secure the township itself, will appear from the mode of prosecution prescribed. “ Prosecuted in every respect as sheriff’s bonds;” that is to say, on application by a person aggrieved and at his costs and charges. Elm. Dig. 287. pl. 59; Ib. 511, pl. 10. See also the late act of the 19th of February, 1840. Harr. Pub. Laws. 385. Under either act a prosecutor other than the nominal plaintiffs’ is contemplated.
    The condition of the bond should be construed most favorably to the obligors. Hurlstone on Bonds, 32. 9 Law Lib. 2 Shep. Touch by Preston, 375-377. 31 Law Lib. The contract of sureties is to be construed strictly. Hurlstone 111. Miller v. Stewart, 9 Wheat. 680. 5 Condensed Rep. 727. Crocker v. Tales, 13 Mass. 260.
    II. But if the duties of a constable in executing a tax-warrant, be within the condition of the bond, still the breach in this case has been defectively assigned. The breach must be assigned with certainty and particularity. Hurlstone 134. 1 Chit. Plead. 365, 370. It must appear that the constable failed to perform some legal duty assigned him. It does not appear that a return of the delinquents was made by the proper officer, at the proper time and under oath. Elm. Dig. 554, pl. 18, 20, 21. The act requires the constable to pay over the money collected to' the township collector; the breach assigned is, that hé did not pay over the same to the plaintiffs, that is to the “ inhabitants of the township.” It is not alleged, that ho neglected and refused to pay over the money within forty-five days after date of the warrant. See Elm. Dig. 555 pl. 25.
    
      W. JV. Jeffers contra.
   The opinion of the court was delivered by

Carpester J.

I concur in the opinion pronounced by my brother JYevius, that the execution of a tax-warrant, delivered to a constable under the provisions of the act concerning taxes, is within the condition of his bond ; that it is one of the duties of a constable, mentioned iu the condition of his bond. The words of the condition are so broad, as fairly to embrace all the civil duties of a constable in bis township; at any rate in regard to the collection of moneys.

As to some of the objections urged against the plaintiffs’ assignment of breaches. The breach assigned in the replication is not for refusal or neglect to receive the warrant, or to collect the moneys due thereon from the delinquents therein named. The breach alleged is, that having received the warrant and having collected a large sum of money under and by virtue thereof, the constable lias neglected and refused to pay it over. Does it lie in the mouth of the constable, having so collected this money by virtue of this warrant, to say that the warrant is irregular, or has been irregularly issued, and that he ought not to be compelled to pay over the money ? Will such an answer from his sureties be satisfactory ? I apprehend not.

As to the supposed irregularity in regard to time, viz : that the list of delinquents was not returned to the justice by the collector on the 20th of December. In this matter I suppose the statute to be merely directory. It is a general rule, that when a statute requires an act to be done by an officer within a certain time for a public purpose, though he neglect his duty and allow the precise time to go by, yet- if he afterwards perform, the public shall not suffer by the delay. People v. Allen, 6 Wend. 486. Ex parte Heath, 3 Hill 47. But in one respect, I apprehend, the replication is defective on general demurrer. The breach assigned must be some duty imposed on the constable by the statute. The duty is, that within a time specified he shall pay over the tax money collected by him to a particular officer of the township, to wit, the township collector ; the breach assigned is a refusal to pay it over to the inhabitants of the township generally. He was not required to pay it, as is supposed by this assignment of breaches, and the assignment is therefore defective. I regret to feel obliged to reverse the judgment on this point, especially as I have no reason to suppose injustice has been done. But I cannot doubt that'if this assignment had been before us on general demurrer, we should have held the assignment bad. The judgment therefore must be reversed.

Nevius J.

It is objected by the defendants in error, that the plaintiff is not entitled to his writ of error, inasmuch as by his confessing the damages, he has released or waived the errors, if any there are. This is not so. Error will lie from a judgment by confession or by default. Bac. Ab. Tit. Error A. So, a man may bring error upon a judgment in his own favor ; or where judgment has been arrested after verdict, the plaintiff may move the court for judgment against himself, in order that he may bring his writ of error.

The main question in the case is, whether the Circuit Court were right in over-ruling the demurrer. It is contended by the plaintiff in error, that the sureties upon a constable's bond are not responsible for his default in the execution of a tax warrant; that this is a special duty assigned him under the act concerning taxes, and not within the meaning or purview of the act which requires the bond to be given. By the 52d sec. of the small cause act, passed in 1798, Pat. 323, every constable was bound to give bond with sureties, if required to do so by the township committee, conditioned for the faithful performance of all the dutics enjoined upon him by that act. Upon the revision of this act in 1818, the legislature saw proper to change this provision, and make the condition of the bond much broader. It declares, that every constable shall, before he enters upon the execution of his office, give a bond conditioned for the true and faithful performance of all the duties of the said office of constable; and prescribes the form and substance of the condition, to wit: “ that he shall truly and faithfully perform all the duties enjoined on him, as constable of said township.” It is manifest that the legislature intended this alteration, and not at all improbable that it was designed to meet the very case now before us. By the 17th sec. of the “ act concerning taxes,” Elm. Dig. 555 it is made the duty of the justice, to whom a list of delinquent tax-payers is returned by the collector, to deliver to the constable a warrant requiring him to levy the tax so in arrear; and by the same section it is made the duty of the constable to pay the tax for which such warrant is issued, to the township collector. This act further points out the mode in which the constable is to proceed in the execution of such warrant; and subjects him to a penalty for neglect or refusal to execute it as directed, and to an action for the amount collected and not paid over. Here then is a duty most clearly enjoined upon him by law, as a constable of the township, and a duty of that character which would seem to be appropriately secured by bond, and is clearly within the terms of the condition of his bond. I cannot doubt but his sureties are legally responsible, upon his bond, for his neglect to perform the duties enjoined upon him by the act concerning taxes.

But it is further argued, that there is no lawful breach assigned in the replication. That it should appear, that a proper return was made to the justice at a proper time; and that the justice proceeded according to law; that there was evidence before the justice, that the money had been demanded from the delinquents; that the warrant was issued within five days after the return made to him. That the replication ought also to have set forth what the constable was bound to do with the warrant, and that lie had refused to pay over the moneys so collected by him to the township collector. For the want of these averments it is insisted, that the Circuit Court ought to have sustained the demurrer. And it is further objected, that the replication is defective, in that it sets forth that a “ certain return of the taxable inhabitants of the township, who had made default in the payment of their taxes, was made,” while it ought to have used the words of the act and stated, that a list of the names of delinquents ” was returned.

It must be borne in mind, that the demurrer filed in the court below was general; and whether these objections were urged, in the argument in the court below, does not appear. If they were, and if any one of them was good cause of general demurrer, I apprehend that that court would have permitted the plaintiffs upon terms to have amended their replication, and saved the parties the delay and expense of this writ. If they were not taken in that court, the plaintiff in error appears here with an ill grace to avail himself of them.

The distinction between a general and special demurrer is well settled; the former is to the substance, without assigning any particular cause; and the latter is to the form, where the particular imperfections are pointed out. Now I apprehend, that all the defects in this replication above mentioned, save one perhaps, are defects in the form, if they are defects at all. “ A. return of the taxable inhabitants, who had made default in the payment of their taxes,”, is sufficiently explicit, and indeed more so, than if the replication has used the words of the statute, to wit: “a list of the names of delinquents.” The language in its connection is of the same import, and I know of no rule, by which the party is limited to the language of the act. When the replication states, that this return was duly made to the justice, it is necessarily implied that it was made by the proper officer, and at the proper time, and according to the directions of the act. But if there was irregularity in the return made to the justice; or if not made within the time prescribed by law; or if the warrant was not issued within five days after the return made, the defendants could not set up such irregularities as a defence in this action; no more than a constable could avoid his liability for money collected on an execution, irregularly issued out of a justice’s court. The statute is merely directory as to the time and manner, in which the collector is to make the return, and the time within which the justice is to issue his warrant. The averment that this warrant was delivered to the constable to be executed according to law, although not as full and precise as it might have been, is nevertheless sufficient, and especially on a general demurrer.

The last objection presents more difficulty, viz: the averment that the constable refused to pay the moneys so collected to the plaintiffs, although requested so to do. The statute makes it the duty of the constable to pay the moneys to the township collector, but this is for the use and benefit of the inhabitants of the township. The collector is for that purpose their agent, and a payment to him would have been a good discharge, and the defendants might have rejoined that such payment was made. The replication is good upon its face, and its defect in this particular can only be shown by resorting to a matter extrinsic, and therefore it ought to have been particularly pointed out by special demurrer.

Upon the whole, T think the judgment of the Circuit Court ought to be affirmed with costs.

Hornblower C. J. concurred with Justice Carpenter.

Judgment reversed.  