Thomas v. Weed

14 Johns. 255

Opinion

Per Curiam.

The remedy by action of debt for “ the amount of the execution,” given by the 13th section of the 25 dollar act, (1 N. R. L. 395.,) is in the nature of a penalty, and the measure of the penalty cannot be extended beyond the letter of the statute.

If the plaintiff below had pursued his common law remedy, by a special action on the case, for negligence, or by an action for money had and received, he would have been entitled to interest on the sum proved to have been received by the constable, or actually lost by his negligence. If the creditor, as in this case, chooses to avail himself of the statute remedy, so as to relieve himself from the necessity of proving actual loss, he must be satisfied with “ the amount of the execution.”

Judgment reversed.