Boice v. Main

4 Denio 55

• Court: New York Supreme Court
• Decided: January 15, 1847
• Status: Published

Opinion

E. B. Hawes,

for the defendants in error, insisted that what took place between the plaintiff and the constable constituted the latter a borrower of the money which had been collected, or at all events the private agent of the plaintiff, and that the surety was thereby discharged.

By the Court, Jewett, J.

I see no principle, upon which the verdict of the jury upon the evidence in this case can be sustained. There is no conflict in the evidence. The simple question presented, is whether the surety of the constable is discharged, by the plaintiff’s yielding his assent, without consideration, to a temporary delay by the constable in paying over the money collected on the execution. There was no evidence that the constable offered to pay the money, provided the plaintiff would not assent to his request, nor any pretence that the plaintiff loaned the money to him. I think the j udgment of the justice as well as that of the common pleas should be reversed.

Judgment reversed.