Warner v. Racey

Headnote

The bond taken from a constable, with the act, (2 N. R. L. 126. sess.36.ch. 35.) should be made to the people of the state of New-York.

Through a constable neglects to return an execution for above tHrty days, it is no breach of the bond, taken pursuant to the statute, unless money has hands, o°n account of such which he has refused to pay over.

IN ERROR, on certiorari to a Justice’s Court.

Racey sued the plaintiffs in error before a Justice, on a bond given by Warner, as constable, and M‘Kinney and Sturges, the other plaintiffs in error, as his sureties. The defendants below pleaded the general issue. On the trial, the plaintiff below proved that an execution had been deli» vered to Warner, as constable, which he had neglected to return, for upwards of thirty days. He then proved the execution of thebond by all the defendants below, “ to the people 0f Niagara county,” conditioned for the payment of “ a ll sums of money which shall come into the said Warner’s hands for collection by way of execution.” The bond, as directed to be taken* by the statute, (2 N. R. L. 126. sess. 36. ch. 35.) is, “ to pay to each and every person such sum °f money as the said constable shall become liable to pay, for or on acc0unt of any execution which shall be delivered to such constable for collection.” It was proved that, in fact, no money was collected on the execution; but that the constable took the body of the debtor, &ic. But the jury found a verdict for the plaintiff below, on which the Justice gave judgment.