Downs v. McGlynn — 2 Hilt. 14

Majority

p. 14

Elizabeth Downs v. John McGlynn.

Headnote

In an action against a constable for failure to return an execution issued to Mm, and to pay the amount collected, it appeared that the defendant, after receiving the execution, delivered it to another constable, who made the money upon it, and offered it to plaintiff, less a certain sum which plaintiff had agreed to pay him for making tiro collection.

Held, that, notwithstanding these facts, the plaintiff was entitled to recover.

When an execution is duly issued to a constable, it becomes his duty to execute it in person. He has no power to substitute another constable in his place.

A bargain between the plaintiff in an execution, and the officer holding it, for the payment of a compensation beyond that allowed by law for the collection, is void.

Whether, under section 51? of the District Courts Act (1 Laws of 1851, Í01), a constable is liable for a mere neglect to return an execution, where he has not made anything upon it, qv/zre.

Appeal, by plaintiff, from a judgment of tbe Sixth District Court. Tbe defendant was a constable of tbe court, and was sued for neglect to return an execution issued to bim in favor of the plaintiff. Tbe facts are fully stated in tbe opinion.

Henry Coulter, for the appellant.

Diefendorf & Aikin, for the respondent.

The defendant was sued for neglect ing to return an execution, issued to bim as a constable from the Sixth District Court of this city, in favor of tbe plaintiff. Tho defendant admitted tbe receipt of tbe execution, and that he had not returned it, but sought to shield himself from liability by showing that he delivered it to another constable named Cushing, who, after be bad received it from the defendant, collected the amount, and, it seems, offered it to the plaintiff, less $10, which she agreed to pay Cushing if be collected tbe amount saving her from all risks of replevin, &c. The plaintiff objected to the proof of the witness Cushing, but no exception was taken to tbe decision

p. 15

of the justice overruling the objection. It also appeared, by the testimony of the defendant, that he had never requested Cushing to pay the plaintiff the money, or to pay it into court. The 57th section of the act relating to the district courts (1 Laws of 1857, 707, § 57) provides that a constable shall be liable to a party in whose favor an execution is issued to him, for the amount thereof, “ when he suffers the twenty days to elapse without making a true return thereof, and fling the same with the clerk of the court, and paying to him, or to the party entitled thereto, the money collected thereon by him.” The plaintiff based her action on the section referred to, and was entitled to recover. Section 52 of the act of 1857 provides that the execution issued out of the district courts must be directed to a constable of the city of New York, and, when this has been done, it is hardly necessary to state that it becomes the duty of the constable to execute it diligently, and according to law. He is not gifted with the power of substitution, and cannot shake off the burden of discharging his' duty. He may do so, perhaps, by consent of the party in interest; but the courts would look with jealousy upon such a proceeding, to see that no undue advantage was taken of the judgment creditor. In this case, when the transfer of the process was made by the defendant, the constable, Cushing, to whom it had been given, proceeded to make a void bargain (Hatch v. Mann, 15 Wend. 44 ) for the price to be paid for collecting it, and, it would seem, as before stated, after he had made the money, offered it to the plaintiff, Jess the amount to be paid him under the agreement. Neither he nor the defendant paid the money into court, and thus this case furnishes an illustration of the evils to spring from any rule other than that holding these officers to a strict accountability. The defendant possessing no power to delegate his trust to another, and the money having been made on the execution delivered to him, the presumption of law is that he made it under and by virtue of the execution, and, having failed to return it, and to pay over, his liability was consummated. He must look to his deputy for indemnity, and cannot complain if he fails to acquire it in that direction. There

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may be some doubt whether, under the 57th section considered, a constable is liable for a mere neglect to return an execution, not having made anything upon it, but that question does not necessarily arise. The money was made in this case, and the defendant must be subjected to the legal maxim “ qui facit per alium facit per se.”

Judgment reversed.

Cases cited

Hatch v. Mann 15 Wend. 44 N.Y. p. 15