Homan v. Liswell

6 Cow. 659 | N.Y. Sup. Ct. | 1827

Sutherland, J.

Liswell sued Homan before a justice, anc] declared against him in case, for not returning an execution, which had been delivered to Homan, as a consta-kle, in favor of Liswell against Dudley and Tremple. Lis-well recovered, before the justice, the amount of the execution. Homan appealed to the common pleas, where Lis-well again recovers, and Homan brings his writ of error.

The execution bore date the 7iA of March, 1825 ; and on the 6th of April following, it was renewed by direction, and with the assent of LiswelVs agent, with a full knowledge of the time when it issued, and of all the circumstances of the case.

This was a perfect defence to the action. No action can be sustained for not returning an execution which the plaintiff himself has directed and permitted to be renewed. After it was renewed, no return could be made upon it, as an original execution; and after the plaintiff has assented to an act, which rendered a return impossible, he cannot have an action for not making such return. But it appeared that the agent of the plaintiff consented to the renewal, upon the express condition, that Homan, the constable, would be responsible. The language used, was, that it ivas renewed upon his responsibility, to which Homan assented. The action should have been assumpsit upon this promise, if it was valid. Clearly no other action could be maintained.

But we are also of opinion, that there was no legal consideration for the promise. The execution was returnable in thirty days from the date, pursuant to the act of 1824, (sess. 47, chap. 238, s. 14, p. 287, 8.) According to the principles of construction established by this court, as applicable both to statutes and notices, the constable had the whole of the 6th of April to serve and return the execution. In Ex parte Dean, (2 Cowen, 605,) it was held, that where the computation of time in a statute, is to be from an act done, the first day should be excluded. That was on a statute prescribing the time within which an appeal should be brought from a justice’s court. It was held that the day on which the judgment was rendered should be excluded. The same principle was adopted in relation to the redemption act. (2 Cowen, 518.) If the execution, then, had not run out, and the constable had not become fixed, his promise was without consideration. It was a naked promise, by parol, to pay the debt of a third person. There is nothing in the case to show that the execution might not have been served. The judgment must be reversed.

Judgment reversed.