| N.Y. Sup. Ct. | May 15, 1833
By the Court,
In Kellogg v. Wilder, decided in July term, 1831, (not reported,) the first question raised in this case was decided, and it was there held that for a mere neglect to return an execution, a suit lay against a constable and Ms sureties. In Warner v. Racey, 20 Johns. R. 74, a justice’s judgment, rendered against a constable, was reversed because there was no evidence that money had come to his hands; but .there the condition of the bond was for the payment of all sums of money which should come into Warner’s hands for collection by way of execution, and not in the terms of the statute, to pay to each and every person such sum of money as the constable should become liable to pay for or on account of any execution, &c. In Gardner v. Jones, 20 Johns. R. 357, the liability of the constable for the mere neglect ro return is fully recognized. Every person chosen or appointed to the office of constable is required, before entering on the duties of his office, to enter into an instrument in writing with one or more sureties, by which he and they shall jointly and severally agree to pay to each and every person who may be entitled thereto, all such sums of money as the constable may become liable to pay on account of any execution which shall be delivered to him for collection, 1 R. S. 346, § 21, being a reenactment of the act of 1813, 2 R. L. 126. It is clear that the responsibility of the sureties is co-extensive with that of the constable, and that they are liable whenever he is liable to a party in whose favor an execution has been delivered to him. It would be doing violence to the language and obvious intent of the act, and greatly abridge the rights of parties, to confine such responsibility to cases only in which monies had been collected and remained in the hands of the officer.
The justice decided correctly in overruling the demurrer, and as by it the delivery of the execution to the constable and the amount of it were admitted, it was competent to the justice to compute the interest and render final judgment. Demurrers in justices’ courts are usually put in and heard without much formality, being generally decided at the time. Generally, when the decision is against them, the justice should allow them to be withdrawn, and should give liberty to plead, if asked for ; still, it is a question in some manner resting in the discretion of the justice, and I am not prepared to say that discretion was abused in this case. The justice returns that the defendant admitted (independently of the demurrer) all the facts in the declaration ; and on this ground, no doubt, he refused liberty to plead. Should the discretion thus reposed in a justice be abused, the common pleas ought to interfere ; the error would be similar to an improper refusal to grant an adjournment, and to some other cases in which the justice is bound to exercise a sound discretion.
Judgment affirmed.