Majority
p. 281The People vs. Holmes and Caswell. moved to set aside the proceedings, on the ground that an individual has not a right to commence a suit for his own benefit in the name of the people, without being expressly authorized by statute, or the order of some court. (1 Johns. R. 311. 1 Cowen, 189. 1 Tidd, 470.) It was also insisted that the statute, (2 R. L. 126,) did not contemplate a bond in a penal sum, or the penalty would have been fixed, and did not direct the security to be executed to the people.
Headnote
The security ^von^y ^on» people, though ^ry^should to whon/tho become^liabk on account of an execution delivered to tion/mayrommenee a suit on the security previously'ob- £ ™ng le^„y court,Holmes, as a constable, and Caswell, as his surety, entered into a bond to “ the people of the state of New-York,” in the penalty of $1000, conditioned that Holmes should pay to each and every person such sums of money as he should become liable for on account of any executions which should be delivered to him for collection. A suit was commenced on this bond by Spencer Kellogg, in the name of the people, and in his declaration, he assigned for breaches, that three judgments had been obtained by him against one Allen, be- , . . . . lore a justice of the peace, on which executions had issued, which had been delivered to Holmes, as a constable, to execute, and that Holmes had become liable for the same.
B. Bagley, for defendants,
p. 282
J. A. Spencer, contra.
The bond of a constable may be given to the people, though it is not deemed necessary ^at jj. te thus executed, as intimated in Warner v. Racey, (20 Johns. R. 74.) Any person to whom the constable has become responsible on account of an execution delivered to him for collection, is entitled to commence a suit on the bond or instrument in writing, (in the language of the statute,) executed by him to ensure the faithful discharge of his duties, and previous leave to prosecute is not necessary to be obtained. The motion is denied, with costs.