Hinman v. Moulton — 14 Johns. 466

Majority

p. 470

Hinman against Moulton.

NEW-YORK,

October, 1817.

Headnote

Where the had recovered judgment in justice's court, taken out execution, difrom and*the *constal uni endmel °íPoñ the execution, by which he i to debt and costs, in the life of the execution, for value received; in an by plaintiff m the execution against A. on his undertaking, it was held, that this was a promise to the plaintiff himself, whether A. knew of the constable’s authority to take security or not; that it was a valid security, and net for ease and favour; that there was a good consideration in fact, the release of the debt, by discharging the defendant from arrest, and that the words value received, were a sufficient consideration expressed, at least, prima facie.

IN ERROR, on certiorari to a justice’s court,

The plaintiff below obtained a judgment, before a justice, r , against one Sheldon, lor 12 dollars and 70 cents, on which an ° ecution was issued. On the trial, one Spire, a constable, fied, that he received the execution from the plaintiff, with rections to take security for the amount, rather than to carry Sheldon to gaol. He accordingly took as security, an merit on the execution, signed by the defendant, in these words, “ I promise to pay the amount of this execution in the life, debt

p. 471

and cost, value received.” The witness discharged Sheldon, and delivered the execution and endorsement to the plaintiff. The plaintiff then offered to prove that the defendant had received property from Sheldon, to indemnify him for paying the execution; but this the justice overruled. Spire further testified, that when he took the memorandum from the defendant, he told Sheldon of his authority to take security, which, however, the defendant did not hear. The justice gave judgment for the defendant.

This is a promise, beyond all doubt, to the plaintiff himself. The execution was in his favour, and he authorized the constable to take security; and whether this authority was known to the defendant or not, is immaterial; it was stated to Sheldon; and if it were material to the defendant to know it, he ought to have inquired of Sheldon. The constable took the security by direction of the plaintiff, who afterwards accepted of it, and Sheldon was completely discharged from the debt, on being released from the arrest by the agent of the plaintiff. This is not a security taken for ease and favour. Taking the execution and endorsement together, it is a promise to pay to the plaintiff the amount of the execution in 30 days, (the time during which the execution would be in full life,) and was accepted in satisfaction of the judgment. If the constable had taken the defendant’s note of hand in payment, by the plaintiffs order, there could not be a doubt but that the note would have been valid. It is said that there is no consideration for the promise expressed in it. This is a mistake. The words “ value received” are a sufficient consideration, at least prima facie; and here was a good consideration, in fact, and the plaintiff, moreover, offered to prove that the defendant below was indemnified. The case of Skelton v. Brewster ( 8 Johns. Rep. 376 .) is in point.

Judgment reversed.