
    Beacher v. Hart.
    A constable may not be clioson out of tlie month of December, only in ease of death or removal.
    Erroe. Beacher sued Hart on a note; Seth Lewis served the writ as constable.
    The defendant plead in abatement — That said lewis was not constable, and had no right to serve said writ; plaintiff replied that he was not chosen at the animal meeting in December, but tliat said animal meeting was adjourned into tlie’ month of January, and that he was then chosen constable and sworn; to this reply the defendant gave no answer although moved for, and the County Court gave judgment, that said Lewis was not chosen constable in the month of December, hut in the month of January, and said choice was illegal and void, and that said writ abate.
    Errors assigned were —■ 1st. That the court ought to have’ ordered the defendant to have answered said reply. 2d. That said writ ought not to have been abated.
    Judgment— jSTothing erroneous.
   By the Court.

Regularly in every action at law, an issue in fact or in law, ought to he joined, in order to a decision; but the practice has been otherwise in pleas of abatement, and a plea unanswered has been considered as demurred to; and it is evident the County Court considered these pleadings in that light, for the court found the facts in tlie reply to be insufficient.

The statute is express, that constables, and other town officers, shall be chosen, in the month of December, and be sworn; and certain duties are enjoined upon them to perform in the month of January; and the act relating to constables is express that constables shall be chosen and sworn before the 1st day of January; and in case any town by death or removal of the constable or constables thereof, shall become wholly destitute of such officer, such town shall assemble forthwith and proceed to the choice of a constable or constables, to supply the vacancy so made, who shall be sworn, etc. Had the towns a right to choose their constables in any other month than December, the provision of this act would have been unnecessary.  