Millard v. Canfield — 5 Wend. 61

Majority

p. 61

Millard vs. Canfield.

Headnote

A constable is not authorized, on an arrest by virtue of a warrant in a civil cause, to take security for the appearance of the defendant.

Where such security was taken, and $40 was deposited with the bail for his indemnity, and the money, by the connivance of the bail with the creditor, was levied upon by virtue of an execution, it toas held, that an action of trover for the money might be sustained by the depositor against the bail after demand and refusal.

Error from the Onondaga common pleas. Canfield sued Millard in an action of trover for $40 in bank bills. The facts were these: Canfield was arrested by a constable on three warrants issued by a justice in civil suits commenced against him ; Millard became bail to the constable that Canfield would appear before the justice on a certain day, and stand trial in the three suits; and to indemnify Millard for thus becoming bail, Canfield put into his hands $40, to be returned to him if he complied with the engagement entered into by Millard. After two of the suits were tried, Canfield demanded the money of Millard, who refused to deliver it up, and a second de

p. 62

mand was made after the third suit was tried. After the triaj ^¡{¡arj went with a plaintiff in one of the suits to the store °f such plaintiff, and there took from his pocket a wallet containing the money received by him of Canfield, and laid the same on the counter; where it was levied upon by the constable who had served the warrants, by virtue of an execution. The evidence furnished strong presumption of connivance between the creditor and Millard, though the constable denied connivance. The court charged the jury that the contract between Canfield and Millard was void, and that Canfield had a right to the money at any time when demanded, even though such demand had been made prior to the time when Canfield had agreed to appear before the justice ; and even if Millard had a special interest in the monejr, such money could not be levied on by virtue of an execution against Canfield. The jury found for the plaintiff; on which verdict judgment was entered.

J Jl. Spencer, for plaintiff in error.

Money may be levied on by execution. 12 Johns. R. 220. id. 395. If taking security by the constable was void, the contract between the defendant and his bail was not so; the latter had a right to retain the money until the conditions on which he received it were performed. 12 Mass. R. 115 . Dougl. 470. Cowp. 197, 200, 793. Bull. N. P. 131, 2.

C. P. Kirkland, for defendant

in error. It was the duty of the constable, on the arrest of the defendant, to have taken him forthwith before the justice who issued the warrants. Statutes, ml. 6, 281 c. He was not authorized to take security for the appearance of the defendant. The security taken was colore officii, and being unauthorized was void. 7 Johns. R. 426. 8 id. 100. 15 id. 443. The money having been parted with without consideration, belonged to the depositor. 1 Sel. 72. If the contract, as between the immediate parties to it, be considered good, the conditions on which the money was deposited having been fulfilled, the depositor was entitled to it; and the connivance of Millard with the constable to have the money levied on was a conversion of it.

p. 63

By the Court,

The act authorizing the proceeding by warrant does not justify the officer in taking security for the appearance of the defendant. It is (lie officev’s duly to take the defendant forthwith before the justice. He has no right to take security ; and such security, if taken, is void. The law looks with jealousy upon officers taking securities in their official character, when not warranted by law. 7 Johns. E. 426. 8 id. 100. The undertaking of Millard to the constable being void, there was no consideration for the deposit of $40. Canfield was entitled to it at any moment, and the defendant Millard ought to have returned it to him when demanded ; his refusal to do so was a conversion. Whether the money could be levied on is a question not necessary to be decided in this case. There is strong reason to believe there was connivance between the creditor and Millard, though the constable denies it; but whether soar not is immaterial: there was a conversion of the money, and the plaintiff below rightfully recovered.

Judgment affirmed.