Hatch v. Mann, 15 Wend. 44.
In S. Ct. 12 id. 463.
Assumpsit; Action by Officer for Extra Compensation, in addition to his fees.
This case began thus:—
Mann sued Hatch before a justice of the peace, for services rendered by him in arresting one G. on a justice’s warrant. He proved that he, on being applied to at an unseasonable hour, declined the service; but on Hatch’s offering to “ pay him well for it,” he agreed to perform it, and employed a person to assist him; that they went to the house of G. at three o’clock in the morning, and at about day break, succeeded in arresting him. The service was proved to be worth one dollar and seventy-five cents ! The cause was tried by a jury of their peers, who found a verdict for the plaintiff for that amount. Certiorari therefrom to Yates County Common Pleas. Judgment of the Justice affirmed by that tribunal. Thence to the Supreme Court by writ of error, which court affirmed the judgment with costs. Thus far the plaintiff had triumphed over his persevering adversary. But alas! his day of reverse was at hand. The undismayed defendant, brought a writ of error to the Court for the Correction of Errors.
The defendant, on the trial before the justice, had offered to prove that at the time of the service of the warrant, Mann was a constable; and that of course, he was in duty bound *32
to serve all process put into his hands. This evidence was objected to by the plaintiff, and rejected by the justice.
The Court of Errors seeing the important principle involved in this contest, and that it concerned them as the court of last resort, to see that the republic should receive no detriment, took the case into careful consideration; and thereupon it was adjudged, that the constable could not recover his $1,75, upon the agreement set up as the foundation of his action, as the act was one done in the performance of his official duty; and it was against the statute (2 R. S. 650, § 5,) to take any-thing beyond legal fees. The Court therefore, reversed the Judgment.
Judgment reversed, 18 to 5.