Petersilea v. Stone

• Decision Date: 11 January 1876
• Citation: 119 Mass. 465
• Parties: Carlyle Petersilea v. Amos Stone
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 465

Carlyle Petersilea v. Amos Stone

Supreme Court of Massachusetts

January 11, 1876

Argued November 15, 1875

Suffolk. Contract upon a poor debtor's recognizance entered into by Abraham B. Shedd, as principal, and the defendant as surety. The case was submitted to the Superior Court, and after judgment for the defendant, to this court on appeal, or on agreed statement of facts in substance as follows:

It is agreed that the defendant entered into the recognizance declared on, and that all the proceedings had upon the application of the judgment debtor, Shedd, for the benefit of the law for the relief of poor debtors, were valid and regular, except in the service upon the plaintiff of the notice of Shedd's desire to take the oath provided for in such cases, the plaintiff contending that the service of the notice by Ephraim W. Farr, describing himself as a constable of the city of Boston, was not sufficient. The question of the sufficiency of service by Farr is the only one at issue in this case.

It is agreed that Farr was duly nominated and confirmed as a constable of the city of Boston, and received a warrant or certificate, gave a bond, as required by law, in order to enable him to serve civil process, and was duly sworn and qualified on October 16, 1873, the bond reciting that Farr had been appointed a constable of the city "for one year from September 29, 1873, and until another be appointed in his place," and entered upon the discharge of his duties as constable.

At the general appointment of constables, which is made annually, on September 28, 1874, Farr was nominated by the mayor, but failed of confirmation at the time of general confirmation but was afterwards confirmed on November 9, 1874, gave a bond as aforesaid, and was duly sworn and qualified on November 30, 1874, his certificate bearing date November 9, 1874. The notice referred to above was seasonably served on October 5 1874.

Farr had been for several consecutive years a constable of said city, duly qualified to serve, and serving, civil process, and was generally known as such, and on that day, before, at the time of, and after the service, he held himself out and was notoriously acting as such constable, as he had done since September 29, 1873, having an office in Boston, and on the door thereof his name with the addition of "constable." Shedd delivered the notice to Farr for service at his office, and then and until long after such service believed that Farr was duly qualified as such constable to serve the notice. Farr arrested Shedd on the execution, in pursuance whereof the recognizance was taken, and at the time of receiving and serving said notice held said execution as such officer.

If admissible, the plaintiff can prove that Farr knew that he had failed of confirmation as constable on September 28; but it is agreed that he and Shedd both acted in good faith, both believing that Farr was duly authorized to serve said notice.

The number of constables for the city of Boston varies from year to year, and the time for their appointment is not fixed, the number of constables and the time for their appointment and confirmation being regulated solely by the discretion of the mayor and aldermen. Appointments and confirmations were in fact made on several different days between September 28 and December 31, 1874, and on October 5, 1874, there was a large number of constables duly appointed and qualified to serve civil process in said Boston.

If the service of said process was sufficient, judgment was to be entered for the defendant; otherwise, for the plaintiff.

Judgment affirmed.

H. F. Buswell, for the plaintiff.

C. Robinson, Jr., for the defendant.

Devens, J. Endicott & Lord, JJ., absent.

OPINION

Devens, J.

If Farr was an officer de facto, the validity of the service by him of the notice to take the poor debtor's oath cannot be inquired into collaterally. Coolidge v. Brigham, 1 Allen 333. In order to show that he was not, the plaintiff relies upon the statement of Bigelow C. J., in Fitchburg Railroad v. Grand Junction Railroad, 1 Allen 552, 557, that "the exact distinction between an usurper or intruder, and an officer de facto, is this: the former has no color of title to the office; the latter has, by virtue of some appointment or election." If...