Brady, J. The defendant was sued for neglecting to return an execution issued to him as a constable for the Sixth District Court of this city in favor of the plaintiff. The defendant admitted the receipt of the execution, and that' he had not returned it, but sought to shield himself from liability by showing that he delivered it to another constable named Cushing, who, after he had received it from the defendant, collected the amount, and, it seems, offered it to the plaintiff less $10, which she, the plaintiff, agreed to pay Cushing if he col-, lected the amount, saving her from all risks of replevin, &c. The plaintiff objected to the proof of the witness Cushing, but no exception was taken to the decision of the justice overruling the objection. It also appeared by the testimony of the defendant, that he had never requested Cushing to pay the plaintiff the money, or to pay it into court. The 57th section of the act relating to the district courts (1 Laws of 1857, 707, § 57), provides that a constable shall be liable to a party in whose favor an execution is issued to him for the amount thereof, “ where he suffers the twenty days to elapse without making a true return thereof, and filing the same with the clerk of the court, and paying to him or to thé party entitled thereto, the money collected thereon by him.”
The plaintiff based her action on the section just referred to, and was entitled to recover: Section 52 of the act of 1857 provides that the execution issued out of the district court must be directed to a constable of the city of Hew York; and when this has been done, it is hardly necessary to state that it becomes the duty of the constable to execute it diligently and according to law. He is not gifted with the power of substitution, and cannot shake off the burden of discharging his duty. He may do so, perhaps, by consent of the party in interest, but the courts would look with jealousy upon such a proceeding, to see that no undue advantage was taken of the judgment creditor. In this case, when the transfer of the process was made by the defendant, the constable, Cushing, to whom it had been given, proceeded to make a void bargain (Hatch v. Mann, 15 Wend., 44) for the price to be paid for collecting it; and, it would seem, as before stated, after he had made the money, offered it to the plaintiff less the amount to be paid him under the agreement. Heither he nor the defendant paid the money into court; and thus this *243-ease furnishes an illustration of the evils to spring from any rule other than that of holding these officers to a strict accountability. The defendant, possessing no power to delegate his trust to -•another, and the money having been made on the execution delivered to him, the presumption of law is, that he made it under and by virtue of the execution; and having failed to return it -and to pay over, his liability was consummated. He must look to his deputy for indemnity, and cannot complain if he fails to -acquire it in that direction. There may be some doubt whether, under the 57th section considered, a constable is liable for a mere neglect to return an execution," not having made any thing upon it; but that question does not necessarily arise. The money was made in this case, and the defendant must be subjected to the legal maxim, gwi faait per aliumfacit per se.
The judgment must be reversed.