
    [*] Inhabitants of NOTTINGHAM against GILES and Sureties.
    Constable’s bond must conform to the statute.
    The plaintiffs declared against the defendants, in debt on bond, in the usual form; the defendants prayed oyer of the bond and condition; by which it appeared that, John Giles, one of the defendants, ivas duly elected at the annual town meeting, a constable. The condition was to this effect: if, therefore, the said John Giles shall in all things touching his said office, conduct himself well and faithfully, as a constable ought by the laws of this State, and the United States, to do, and pay forward all moneys according to law, that may come into his hands by virtue of his said office, and all other moneys that he may be accountable for, as constable, and that without fraud and other delay, then, &c. The defendants then aver that they went before the township committee to give the security required by the act of Assembly: that the bond and condition aforesaid were required and taken by the said township committee, by eolor and under pretense of the act of Assembly, and plead this special matter in bar, and allege the bond is void; to which the plaintiffs demur, joinder in demurrer and issue.
    
      Mr Ewing, for the defendant,
    contended that this bond, being taken under the act of Assembly, the act ought to have been strictly pursued; that the township committee had, under color of law, extorted from the defendants, a bond containing a condition not required by law; that it was therefore void.
    
      Mr. L. H. Stockton, for the plaintiff,
    contended that the bond was good at common law; that if it was to be considered as taken under the statute, yet, that the statute had been substantially pursued; and even if part of the condition was bad, the bad might be rejected, and the good supported.
    [*] Mr. Ewing, in reply.
    This bond being taken under the statute, if any part is bad, the whole is bad.
   Kirkpatrick, C. J.

— This case is different from that of Woolwich; by the pleadings in this case, the question [89] is brought fairly and fully up; and it appears that the bond was taken by color, and under pretense of the act of Assembly, which has not been pursued, but new conditions added. In my opinion, the defendants must have judgment.

Rossell, 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 color and pretense 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 Hobebt made the observations attributed to him by Justice Twtsden — that the statute was like a tyrant — wherever it came, it made all void; but that the common [*] law was like a nursing father, that where it came, it only made void that which was bad, but 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 color of their office, 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.

Cited in Comp v. Allen, 7 Halst. 1, 16; Vroom v. Smith’s Ex., 2 Gr 479. 
      
       The authority for township committees to take bonds of constables, is derived from the 52d section of the act constituting courts for the trial of small causes. Paterson, 323. The condition of the bond required by the act is simply, “for the true and faithful performance of all the duties enjoined on him by this act,” that is, the act constituting courts for the trial of small causes.
      
     
      
       Vide Rev. 644- The form now is, “ shall truly and faithfully perform all the duties enjoined on him, as constable of said township.” — Ed.
     