Conner v. Palmer

Massachusetts Supreme Judicial Court

Conner v. Palmer

54 Mass. 302

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1847

StatusPublished

This text of 54 Mass. 302 (Conner v. Palmer) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Conner v. Palmer, 54 Mass. 302 (Mass. 1847).

Pincite

Opinion

Shaw, C. J.

This is an action of replevin for goods, in which the writ was originally returnable before the court of common pleas; and the question is, whether it was rightly served and returned by a constable.

This question depends upon the construction of the statute By Rev. Sts. c. 15, § 71, constables are authorized to serve writs and executions in any personal action, in which the damage is not laid higher than seventy dollars. This would seem to be sufficient to give the authority, if it stood alone. But it must be taken in connexion with the context and the subject matter. By the same chapter, enumerating in several sections the powers and duties of constables, it is provided by § 73, that “ constables may also serve writs of replevin, in cases where the sheriff or his deputy shall be a party, and in which the value of the property to be replevied shall not exceed the sum of seventy dollars.” This carries a strong implication, that in other cases the constable has not the authority. The jurisdiction of the sheriff is general, and limited only by specific exceptions. But the authority to the constable is given only in specific cases, which must appear an the face of the writ. This necessary implication qualifies [304]*304the generality of § 71, so that it does not apply to actions of replevin, unless in cases where the value of the property does not exceed seventy dollars, and where the sheriff or his deputy is a party.

This conclusion, we think, is confirmed by a reference to the subject matter. In most personal actions, the matter ultimately claimed in the suit is a sum of money expressed in the ad damnum. The obvious purpose of the statute being to give constables a limited authority only to serve writs in civil cases,this maybe well measured in most personal actions by the ad damnum. But it is otherwise in replevin, where specific property, often of great value, may be the subject of judicial controversy, whilst the damages are merely incidental, and may be comparatively small. On these grounds;, the court are of opinion, that the writ was not legally served by a constable, and that the action was rightly dismissed by the pourt of common pleas.

Exceptions overruled

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Shaw, C. J.

This is an action of replevin for goods, in which the writ was originally returnable before the court of common pleas; and the question is, whether it was rightly served and returned by a constable.

This question depends upon the construction of the statute By Rev. Sts. c. 15, § 71, constables are authorized to serve writs and executions in any personal action, in which the damage is not laid higher than seventy dollars. This would seem to be sufficient to give the authority, if it stood alone. But it must be taken in connexion with the context and the subject matter. By the same chapter, enumerating in several sections the powers and duties of constables, it is provided by § 73, that “ constables may also serve writs of replevin, in cases where the sheriff or his deputy shall be a party, and in which the value of the property to be replevied shall not exceed the sum of seventy dollars.” This carries a strong implication, that in other cases the constable has not the authority. The jurisdiction of the sheriff is general, and limited only by specific exceptions. But the authority to the constable is given only in specific cases, which must appear an the face of the writ. This necessary implication qualifies [304]*304the generality of § 71, so that it does not apply to actions of replevin, unless in cases where the value of the property does not exceed seventy dollars, and where the sheriff or his deputy is a party.

This conclusion, we think, is confirmed by a reference to the subject matter. In most personal actions, the matter ultimately claimed in the suit is a sum of money expressed in the ad damnum. The obvious purpose of the statute being to give constables a limited authority only to serve writs in civil cases,this maybe well measured in most personal actions by the ad damnum. But it is otherwise in replevin, where specific property, often of great value, may be the subject of judicial controversy, whilst the damages are merely incidental, and may be comparatively small. On these grounds;, the court are of opinion, that the writ was not legally served by a constable, and that the action was rightly dismissed by the pourt of common pleas.

Exceptions overruled

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Bluebook (online)

54 Mass. 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conner-v-palmer-mass-1847.