
    Van Slyck against Taylor.
    NEW YORK
    May, 1812
    In an action stabkbeforeá justice of the peace,the exeeution was not jroroZevWence was given of it. It was held, that this not being objected to at the trial, could not, afterwards,be alleged for error.
    A justice hasno ^authority prisoneron execution, without aspeciai power for from the pain in the suit.
    And it a constable who has the prisoner in his custody, discharges him by order of the justice who has nó such author!plaintiff, he is liable to an action for an escape.
    
    ' IN error, on certiorari, from a justice’s court.
    
      Taylor brought an action of debt against Van Slyck, a constable, for the escape of Josias Minkler, jun. in his custody, under an execution at the suit of Taylor, issued by á justice. The . execution against Minkler was not produced, nor any reason given why it was not. Parol proof was given, that the defendant jje]ow jja(j sucjj an execution, on which he held Minkler in his custody. The amount of the execution was not stated. No objection was made to this parol proof. The defendant below moved for a nonsuit, but on what ground was not stated, and the just be denied the motion. The defendant below then proved, that whilst he had Minkler in his custody, and was conveying him to prison, he met the justice who issued the execution, and who, er some conversation, (which was not stated,) required the defendant to return him the execution, which was done, and the justice discharged the prisoner. There was a trial by jury, and a verdict for the plaintiff, on which the justice gave judgment for 9 dollars and the costs.
   Per Curiam.

The objection now raised against the admission of parol proof of the execution, comes too late; it would have been valid, had it been made on the trial, but no such objection appears to have been made, and we cannot intend, for the purpose of reversing a judgment, that this framed the ground of the motion of a nonsuit. All intendments ought to be in support of the judgment. The constable doubtless acted in good faith, and in obedience to what he supposed competent authority, in discharging Minkler, yet this will not excuse him. The justice had no authority, in his official character, to order the prisoner discharged, and no special power for that purpose appears to have been given by the plaintiff in the execution. It was, therefore, an act altogether unauthorized, and will not excuse the constable.

Judgment reversed.  