Thomas v. Weed
New York Supreme Court
ON certiorari to a justice’s court.' Weed brought an ac-lion of debt before the justice against Thomas, a constable, for not returning an execution, &c. The justice gave judgment for the plaintiff for the amount due on the execution, with interest. The only question arising on the return was, whether the interest J * - ° * was recoverable.
1Per curiam
The remedy by action of debt for “ the amount of the execution,” given by the 13th section of the 25 dollar act, (1 N. R. L. 395.,) is in the nature of a penalty, and the measure of the penalty cannot be extended beyond the letter of the statute.
If the plaintiff below had pursued his common law remedy, by a special action on the case, for negligence, or by an action for money had and received, he would have been entitled to interest on the sum proved to have been received by the constable, or actually lost by his negligence. If the creditor, as in this case, chooses to avail himself of the…
2Cited by7 opinions
- Wilson v. . City of TroyNew York Court of Appeals · 1892
- Eddy v. LafayetteCourt of Appeals for the Eighth Circuit · 1892
- Reid v. President & Directors of the Rensselaer Glass FactoryNew York Supreme Court · 1824
- Smith v. MorganWisconsin Supreme Court · 1889
- Washington & Georgetown Railroad v. HickeyCourt of Appeals for the D.C. Circuit · 1898
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