
    Malbone Briggs and Another versus John Strange.
    A constable may serve a writ, where the sheriff or his deputy is a party, where the damage sued for or recovered does not exceed seventy dollars
    A constable may attach property in his own town, although the debtor be not an inhabitant of, or resident in, such town.
    it is lawful for an officer to attach a boat, and a cable and anchor, appurtenant to a vessel, while she is lying ata wharf, and such appurtenances are not necessary to her safety
    
      Trespass for taking and carrying away a boat, a cable, and an anchor. The defendant pleaded the general issue, and filed a brief statement of facts in his justification, viz., that he was a constable of Freetown, and took the chattels on a writ in favor of one John H. Pierce, a deputy sheriff of the county of Bristol, against the said Briggs.
    
    On the trial, which was had before Jackson, J., at the last Apnl term, at Taunton, it appeared that the goods in question were part of the tackle and appurtenances of the sloop Victory, of which Briggs owned two thirds, and the other plaintiff one third. The whole of the sloop, excluding the said boat, cable, and anchor, had been taken on execution and sold, as the property of Briggs. This sale was afterwards rescinded, and the purchaser gave up the property, on account of some real or supposed irregularity in the sale. The sloop was afterwards again taken on the L * 406 ] * same execution, still excluding the said boat and cable and anchor; and two third parts of the sloop were then sold as the property of Briggs. The attachment by the defendant was made after the sloop was first seized on the execution, and before the sale; but whether before or after the said rescinding of the first sale, did not appear. The said Pierce was the officer who served the said executions. The defendant, when he took the goods, attached two third parts thereof, as the property of Briggs, and made a return of his writ accordingly. The writ was directed to the coroners of the county, or to any constable of Freetown, &c., and the defendant was, at that time, a constable of that town.
    The plaintiffs objected, 1st, that the writ, in that case, could not be served by a constable, but ought to have been directed to, and served by, a coroner; 2dly, that if the writ could have been served by a constable, yet no constable- could serve such writ, unless the defendant in the suit was an inhabitant of the town where the constable resided at the time, or was actually in the town; whereas, as was admitted in the present case, Briggs was never an inhabitant of Freetown, nor was in that town when the attachment was made; 3dly, that the defendant could not lawfully attach part of the tackle and appurtenances of the vessel, and take them away, separating them from the vessel.
    As the parties wished to have the question on these three points submitted to the opinion of the whole Court, the judge directed a verdict for the plaintiffs, subject to such opinion; and if the plaintiffs were entitled to recover, the verdict was to stand; otherwise it was to be set aside, and a verdict entered for the defendant; and judgment in either case accordingly.
    
      Bacon, for the plaintiffs.
    By statute of 1783, c. 43, it is expressly enacted, that a coroner shall serve all writs and precepts, when the sheriff or either of his deputies shall be a party thereto.
    It is the general principle, that runs through our whole * system of civil polity, that the authority or jurisdiction [ * 407 ] of an officer deriving his power from the election of the inhabitants of a certain definite territory, shall be limited in the exercise of his power to the inhabitants thereof, or, at the farthest, to those actually within the territory. Many good reasons might be given in support of this principle.
    The third objection, taken at the trial, rests on the general policy of the law, which is intended to protect the citizens in the peaceable and useful enjoyment of their property, protected from useless vexations. Here were two owners of a vessel. Is it not outrageous, that, for an insignificant demand against one of them, a creditor shall have the right to deprive not only the debtor, but the other joint owner also, of all use of the vessel? Such is the necessary effect of taking away the appurtenances attached in this case. As well may a creditor to the amount of five dollars, attach one of the wheels of a carriage belonging jointly to his debtor and another. If sold on execution, difficulties would arise, without number and with out remedy. This boat, &c., could not, after such sale, be considered as belonging to the vessel as before; and the other owner is thus forever deprived of the use of the appendages of his property necessary to its occupation. It can never be said that Briggs, in this case, had such a property in these chattels, that he could sever them from the vessel for his own personal benefit: how then can his creditor have a right to do this ?
    
      H. Cushman, for the defendant.
    The provision of the statute of 1783, relied on by the plaintiff, is virtually repealed by the posterior statute of 1795, c. 41, § 3, by which it is enacted, that a constable may serve any writ or execution, in a personal action, where the damage sued for or recovered shall not exceed seventy dollars; which is a sufficient answer to the first objection.
    The second objection is opposed by the uniform practice of the country. If it prevails, the purposes of justice must be frustrated in very many cases. But the objection *is [ * 408 ] not founded in the law. A precept may be served in the town, whether the party, against whom it issues, be there or not. Attachment of property is a service, as much as arresting the body and holding to bail. The service was completed by an officer of another precinct; just as is every day’s practice, that the sheriff of one county attaches the. property of the debtor, and the sheriff of another gives him a summons for his appearance.
    As to the third objection, the boat, cable, and anchor, cannot be considered as inseparably connected with the vessel. They are often sold by themselves, and their places supplied by others. Had the defendant, instead of attaching these small articles, seized the vessel, he would have been called to answer for a trespass in taking more than was necessary for the creditor’s security. The sloop still remained a sloop entire, after these appurtenances were separated from her. Not so the carriage, after a wheel had been taken off. But the harness of the carriage may well be taken, and the entire carriage left. It is the joint owner’s misfortune, that he has connected himself with an insolvent partner.
   Parker, C. J.,

delivered the opinion of the Court.

With respect to the objection, that the defendant, as constable, had no authority to make service of the precept, upon which he took the chattels, for which this action is brought, it depends on the construction of the statute. The authority given by the third section of Stat. 1795, c. 41, being general as to the persons upon whom the service is to be made, empowers a constable to serve all writs and executions in personal actions, where the damage sued for or recovered shall not exceed seventy dollars. This authority a constable has, when a deputy sheriff is the plaintiff or creditor; notwithstanding the provision in the statute of 1783, c. 43, that writs or precepts, in which the sheriff or his deputies may be parties, shall be served by a coroner; for this latter provision relates only to cases, in w'hich a constable has no authority. [ * 409 ] * But the principal objection seems to be, that the constable had no authority in the case, because Briggs was not in the town where the writ was served; but was an inhabitant of, and resident in, another town. The words of the statute, strictly taken, would seem to confine the authority of constables to the service of precepts, where the party to be affected was within the town; but we are satisfied that this was not the intention of the legislature; nor is it conformable to the practice under the statute. The object in view was to limit the power of the constable as to amount, and as to territory. He is to serve precepts on persons within the town. The attachment of property within the town is, in some sense, a service upon the person; sufficiently so to give the authority intended by the legislature.

As to the other question, viz. Whether the boat, cable, and anchor of the vessel, could be attached, and so separated from the vessel:—this may depend upon the situation of those articles in relation to the vessel. To take a boat or a cable and anchor from a vessel when they are in use, and necessary to the safety of the vessel, would expose the party to damages. But if the vessel were at a wharf, and her cable and anchor and boat not in use, there seems to be no reason why they may not as well be taken as the harness of a carriage, or the sails and rigging of a vessel when separated from the hull, and laid up on shore. The verdict for the plaintiffs must be set aside, and a. verdict entered for the defendant, upon which judgment will be rendered.  