
    Norris vs. Mayor and Aldermen of Smithville.
    Corporation. Surrender of Charter. Jict of 1850, chap. 17. To make the surrender1, by the corporators, of their charter of incorporation effectual, it is necessary that it be accepted by the Government, and a record bo made thereof. Hence, if the inhabitants Of a town, incorporated by an act of the Legislature, accept the act of incorporation, and subsequently, in pursuance of the act of 1850, chap. 17, are re-incorporated, with an enlargement of the incorporated district* the Charter granted by the Legislature is hot thereby surrendered.
    (Same. Constable. A constable, appointed by the proper authorities of an incorporated town, (having power to appoint such officer,) has, and may exercise, within the limits of the incorporated district, and with reference to subjects and matters in which the coíporatioü is interested, all the powers which properly appeitain to a constable at com* mon law.
    .By an act of 1843, the inhabitants of the town of Smith-vill'e were incorporated. Afterwards, in pursuance of their charter, the Mayor, Aldermen and other officers were duly and regularly elected. On the 1st of January, 1850, by an ordinance of the Board of Mayor and Aldermen, a tax of $25 was assessed upon the privilege of retailing spirituous liquors within the town. In. September, 1850, Norris obtained from the clerk of the county court of DeKalb county, a license to keep a tippling house within the town; not, however, paying, at the time of the issuance of the license, either the State, county or corporation tax.
    In October, 1850, the inhabitants of the town presented the following petition to the county court:—
    “The undersigned, citizens of Smithville would state to your Worshipful Court, that they desire to be incorporated a body politic, and to be known and styled as . the Mayor and Aldermen of the town of Smithville, and have the following bounds assigned them, and be incorporated under the provisions of the Act of the General Assembly of the State of Tennessee, passed January 17th, 1850, chap. 17, bounded as follows.” The petition proceeds to set forth the boundaries, and is then signed by the petitioners. (The boundary as designated by the petition, enlarged the limits of the town.
    Upon the presentation of this petition, the county court made the following order: “Upon which petition, the county court, a legal number of all the justices of the peace being present and granting the privilege, &c., prayed for, and it is further ordered that said petition be spread upon the minutes, and that the clerk issue a certified copy for registration in the Register’s office of DeKalb county, as prescribed by the Act of the General Assembly in such case made and provided.”
    Norris, having established his tippling house within the town, and having refused to pay the tax assessed by the May- or and Aldermen, a suit was commenced against him, for the $25, before a justice of the peace, on the 29th March, 1851 — ■ the warrant being executed by the constable of the corporation. The justice quashed the warrant, and gave judgment for the defendant, and the Mayor and Aldermen appealed to the circuit court. At the August term, 1851, of the circuit court, Turner, Judge, presiding, there, was judgment for the plaintiffs, and the defendant appealed in error.
    Combes & Cantrell, for plaintiff in error.
    J. S. Brien and Savage, for defendant in error.
   Totten, J.,

delivered the opinion- of the court.

The action was commenced before a justice'of DeKalb, by the Mayor and Aldermen of Smithville, for the recovery of twenty-five dollars, a tax due from him to the corporation of Smithville, for the privilege of keeping a tippling house within the limits of said corporation. The warrant was executed by the constable of said corporation, and for that reason it was quashed, on motion, before the justice. The corporation appealed to the circuit court, where judgment was rendered in its favor, and defendant has appealed to this court.

Several questions are made. First; it is argued that the present corporation has its existence under a charter granted by the county court of DeKalb, in October, 1850, under the law made in 1850, chap. 17, conferring powers to that effect upon the county court. That the former charter, granted in 1843, by the legislature, was thereby surrendered and the corporation under it dissolved; and, therefore, that the present corporation has no power to collect said tax, it having been assessed and established by the former corporation.

We do not consider that the charter of 1843, was surrendered by the action of the county court in 1850, upon the pe* tition of the corporators referred to. There is no surrender expressly made of the former charter, and the effect of the action of the county court, is merely to extend the limits of the corporation. In order to make the surrender of a corporate charter effectual, it is necessary that it be accepted by the government, and that a record be made thereof.

This is not pretended in the present case. The action of the county court extending the limits of the corporation, may be regarded as an amendment to the charter.

Second, it is next insisted that the court erred in refusing to quash the warrant, because the constable of said corporation had no power to execute it.

The charter or act of incorporation, gives the corporation power to appoint a town constable, and being thus appointed, we can see no reason why he should not have and exercise the powers and duties which properly appertain to a constable at the common law, within the limits of said corporation, and in reference to subjects and things only in which the coi’poration is interested. His powers and duties are very general in their nature, having reference to the good order and well being of the corporation, the removal of nuisances, the collection of its taxes, and such other positive duties as are enjoined upon him by its ordinances. It is not to be presumed, that all his powers and duties can be prescribed in detail, by the ordinances of the corporation, and they are therefore to be referred to a more general rule by which they are ascertained and defined. He is to perform the duties of a constable, an officer well known to the common law, which prescribes and defines his rights, powers and duties; but these are confined to the limits of the corporation, and to those matters only in which the corporation is interested. If judicial power be conferred by the charter upon the Mayor of a city or town, in matters relating to the laws and ordinances of the corporation, there can be no question, but that the constable would be the proper officer to execute and return his processes. And when judicial power is not so conferred upon the Mayor, but is exercised by a justice of the peace, why may not the constable execute his processes, in relation to the same matters, and within the limits of the corporation. We may further observe in reference to this exception, that being matter in abatement, it should have been made by plea in writing, which has not been done.

Third — it is further insisted that the tax was reduced to ten dollars, by an ordinance made on the 19th September, 1850. There is proof tending to show, that the pretended ordinance was not made at any regular meeting of the board, and that there was not a quorum competent to enact it. Whether there was any such valid ordinance, was a question for the jury, under proper instruction from the court, and they have determined that there was none. In view of the facts, as to this part of the case, we certainly concur in the correctness of their conclusion.

We do not deem it material to notice any other questions made in the case. There is no error in the record, and the judgment will be affirmed.  