
    WILEY, MUNN ET AL. adsm. THE INHABITANTS OF THE TOWNSHIP OF PATERSON, IN THE COUNTY OF PASSAIC.
    In Debt, on a Constable’s bond.
    1. The operation of the second section of the act of 10th February, 1840, supplemental to the act constituting courts for the trial of small causes, requiring the name of the person, for whose use an action is brought on a Constable’s bond, to be indorsed on the first process, and inserted in the declaration, in general and applies to all actions on such bonds.
    2. But the object of the statute being to relieve the township from all liability to costs, and to give the defendants security for costs, if the plaintiffs fail in the suit: the plaintiffs had leave upon terms, to indorse the name of the prosecutor on the writ, and amend the declaration by inserting therein his name, and giving such security as is prescribed in the third section of the act, if required so to do.
    8. The rule or order made in this case.'
    
      James Speer for defendants,
    moved to quash or dismiss, with costs, the writ and subsequent proceedings in this cause, on the ground, that the name of the person or persons for whose use the suit had been brought, had not been indorsed on the first process, nor inserted in the declaration which had been filed, pursuant to the directions of the act entitled “ a further supplement to the act entitled an act constituting courts for the trial of small causes,” passed the 10th of February, 1840.
    
      E. JB. D. Ogden for the plaintiffs,
    objected; First, That'it was too late; the writ having been returned to the last term • a declaration filed, and the defendants’ time to plead expired. Second, That this suit was not commenced under the supplement referred to; the clerk of the township having delivered the bond or a copy of it, without requiring any such affidavit as is directed in the first section of the supplement. And Thirdly, insisting that as the object of the statute was to afford the defendants in such cases, security for costs, the plaintiffs ought now upon reasonable terms, to be permitted to name a prosecutor, by indorsing his name on the writ, and inserting it in the declaration.
   Opinion of the Court.

Hornblqwer, C. J.

By the second section of the supplement, it is required, that the name of the person or persons, for whose use the suit is brought, shall be indorsed on the first process, and also inserted in the declaration; and if the plaintiffs shall discontinue, be nonsuited or a judgment pass against them, the person so named as prosecutor, and not the township, shall bo liable for costs : and the sheriff or officer to whom any execution on such judgment shall be delivered, is directed to levy upon and raise the money out of the goods and lands of such prosecutor ; notwithstanding the execution in form is against the township.

The operation of this act is general, and applies to all actions to be brought on Constable’s bonds; without regard to the question, whether the bond or a copy of it was obtained under the provisions of the first section of the supplement or not. Indeed it may be questionable, whether since the passage of this act, a suit can be brought on a Constable’s bond at all, on the mere order of the township committee, under the fifty-eighth section of the original act: since it was manifestly the design of the legislature to relieve the township from all liability for costs, and at the same time to afford the defendants security for costs, if the plaintiffs should fail to recover. Accordingly, by the third section it is provided, that the person named on the process and in the declaration, shall if required before issue joined, give bond to the defendants in one hundred dollars, with sufficient securities, being freeholders and residents, with condition to prosecute with effect, and pay costs if the plaintiffs fail.

But as the object of the act as above stated, is only to relieve the township, and at the same time to give the defendants security for costs, let the following order in this case be entered.

It is ordered that the writ and declaration in this cause stand dismissed out of court with costs, unless the plaintiffs shall within thirty days, indorse upon their writ, and insert in their declaration, the name or names of the person or persons for whose use this action was brought; and also give such bond, if the same shall be required by the defendants, as is directed in the third section of the act; and it is further ordered, that the defendants have thirty days to plead, after notice of such amendment of the writ and declaration, and of such bond being filed, if the same shall be required.” On motion of &o.

White and Yevius, Justices, concurred.

Elmer and Whitehead, Justices, absent.

Conditional rule ordered,.  