ON OERTIOHABI.
A constable may not pay an, execution in his hands and sue defendant for it, unless on his request or promise to repay.
This action was brought before the justice by Disbrey, a constable, to recover the balance due on an execution in his hands, against Woolley, which balance, the constable alleged, that he himself had paid to the person in whose favor it was. It was not alleged or pretended, that Woolley requested the constable to pay the money for him, or that he promised to repay him in case he did. Tt was contended, on the part of Woolley, the plaintiff in error, that this transaction would not make him liable to an action at the *362suit of the constable; that a constable could not, at his will and pleasure, pay off the execution in his hands, and then saddle the defendants with the costs of new suits in his own name. It was required to know the ground work of the action; there was no actual contract or promise to pay the constable the money, nor did the law raise by implication, an obligation to pay it.
Phillips, att’y for plaintiff.
— We do not think that the constable can maintain an action in his own name for this money, without a promise on the part of the defendant below to repay him, or unless he paid it at the request of the defendant below, from which, perhaps a promise might be implied.
Judgment reversed.
Distinguished in Liddel v. McVickar, 6 Halst. 44, 55.
2 N.J.L. 383
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