
    Wheeler against Bailey.
    Where an officer having-a defend-turn a proml«Ece'twóiíare® amóuntPoí the officer on a ct”'officer ^accordlilm7} It eawra held, that this' Sae™nd uwt tiie officer could maintain no ac-on the^on^pet-pro^Tisef °f'tós
    
      M ERROR, •on certiorari tpá-jnsiffee^'-coyrt..
    . The defendant in. error brought ah action jn the court below. agai»sí the plain tiff, in errpr, and declared*, for that he, the plain? tiff: below,,as constable, had,, in his cusfody, one JChaf les., Bife lings,. by virtue of two r executions, an.d the defendant, in.cqn. stderation.that the plaintiff Would' 'release and discharge' Bifr. fe^i,.and that Billings would go'fo.jypfk for.him, the 'defendant, prom ispd .the plaintiff , tha.t he would pay him thé.áiíiount of the executions and costs, if lie failed, to deliver Billings into the- - " ' V; ” ■’ ' “• 1 ' , ’• . .. ° - Gu^t0°j-;0P tRe;'.plaintiff the next Monday morning,; and die breach alleged. was, ■ that the defendant had Jailed; in-the peiv . ‘‘ ^ ‘ ** ■ . J ' . - j * íbunance of his ,promise. •• The allegations pf the declaration were substantially made out in ey-idencb on the trial; butthére .Was, no proof thát the plaintiff below had paid the' executions, off sustained ;any damage.' A,verdict and judgment were given foy the plaintiff below*, the defendant in error. ■ ..r
   Per Curiam,

. .The conduct of the constable, i{i permitting Billings to go at large, amounted to a voluntary escape, and hp had no authority to- take any security for the redelivery of Billings to him; the promise pf the defendant was, therefore, void, fjad it fieen an absolute engagement .to pay the amount of the executions, it might have altered the case; but the undertaking of; the defendant amounted only tp his becorhing security for the .redelivefy ofBillings^ into his custody, a contract which the -law would not justify his making ; and it does not appear that lie has sustained aiiy damage whatever by the non-performance on. the part of the defendant TJie judgment must, accordingly, bp rey.ers.pd,!

Judgment reversed  