7 Johns. 470 | N.Y. Sup. Ct. | 1811
Two motions were submitted to the court upon this case ; the one in arrest of judgment, and the other for judgment for the defendant, upon the facts ■sated in the case.
1. The fourth count is upon a special contract made by the defendant, promising to pay the money which he had collected for the plaintiff, upon request, and after he had received the money. Such an express promise, founded upon the receipt of the money, may be good. A deputy sheriff, as well as any other agent, may make himself personally responsible by a special, undertaking, The general rule is laid down in Cameron v. Reynolds, (Cowp. 403.) that an action will not lie against an under sheriff for a breach of duty in his office. It is the special promise founded upon the collection of the money, that is the ground of this action, and on that ground it may be sustained. But,
2. The evidence did not support the count. There ought to be a clear,.absolute promise made out. Here, the only evidence of the undertaking was, that the defendant said “he would pay the amount of the judgment, but would not pay the costs of the rule,” and the agent of the plaintiff would not accept of the one without the other. The promise, upon the terms offered, .not being accepted, ceased to operate. If one party does not accede to the promise, the other party is not bound. What the defendant afterwards said, “ that he would come and see Mr. Randall (the attorney for the plaintiff) in a few days,” amounted to nothing. And as the verdict was taken subject to the opinion of the court, there must be judgment for the defendant.
Judgment.for the defendant.
