5 Wend. 61 | N.Y. Sup. Ct. | 1830
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.