Hopkins v. Haywood
New York Supreme Court
Error from the Onondaga common pleas. Haywood sued Hopkins before a justice of the peace of the county of Onondaga, for not returning an execution which had been put into his hands as a constable of Cayuga county, to be executed. The suit was commenced against Hopkins by summons, which was personally served, and he not appearing at the return day, the plaintiff proceeded ex parte and obtained judgment for the amount of the execution.
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Error from the Onondaga common pleas. Haywood sued Hopkins before a justice of the peace of the county of Onondaga, for not returning an execution which had been put into his hands as a constable of Cayuga county, to be executed. The suit was commenced against Hopkins by summons, which was personally served, and he not appearing at the return day, the plaintiff proceeded ex parte and obtained judgment for the amount of the execution. Hopkins removed the cause into the common pleas of Onondaga by certiorari, where the judgment was affirmed, and he then sued out a - writ of error, removing the…
1Opinion of the Court
By the Court,
Sutherland, J.
I doubt whether the provisions of the statute relied upon by the plaintiff in error are applicable to a case like this. They relate tó penalties and forfeiture, strictly speaking. The title of the article is, “ Of Actions for Penalties and Forfeitures.” Now the liability of a constable for not returning an execution is not strictly a penalty. He is made responsible for the amount of the execution with interest, which may be recovered in an action of debt, 2 R. B. 253, § 159; but it is no more a forfeiture or penalty, than any other fixed legal liability.
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