
    Parker vs. Newland.
    The defendant having taken out criminal process, put it into the plaintiff ’s hands, who was a constable at Utica, with directions to proceed to Buffalo and serve it, which the plaintiff did; but before starting, he asked the defendant for money, saying he had not enough to go with; whereupon the defendant let him have $30. Held, that this must be regarded as money lent, notwithstanding a declaration of the defendant afterward, that it had cost him $40 or $50 for constable’s fees; especially, as the plaintiff had presented his claim for the services to the board of supervisors, and obtained the proper allowance.
    A constable taking fees beyond the amount allowed by law, is indictable as for a misdemeanor.
    A party injured by a judgment, may claim to have it reversed, though rendered in his own favor.
    On error from the Oneida C. P. Newland sued Parker before a justice, and on issue joined, proved a judgment in his favor against Parker for $2,77. The defendant below, under a proper notice, claimed a set off amounting to §30, for money he let the plaintiff below have, under the following circumstances. The defendant had taken out a warrant in behalf of the people against one Wood, which he put into the hands of the plaintiff below, he being a constable at Utica, with a request that the plaintiff would proceed to Buffalo and arrest Wood on the warrant, and the plaintiff went. When the plaintiff was about starting, the defendant let him have §30 in money. The language of the witness who proved this, was, that “defendant advanced to plaintiff §30 at the time plaintiff had the warrant in his hands.” On cross-examination, the witness said, “ plaintiff asked defendant if he had any money—he said he had—plaintiff said he had not enough to go with, and wanted §30, and defendant let him have §30.” This money the defendant claimed to recover as a set-off. It was proved that he had said, it cost him §40 or §50 for constable’s fees. The plaintiff proved that the journey to Buffalo would occupy 7 or 8 days, and another constable said, he charged §3 per day for such services. The defendant proved that the plaintiff had presented his account to the board of supervisors of Oneida county, in which he charged for this service about $40, and that the board had allowed his account for these and other services at $521, being nearly the whole amount of the account as charged. The jury found a verdict for the defendant for $5, on which the justice rendered judgment. The defendant brought a certiorari to the C. P., on the ground that the whole of the $30 should have been allowed to him as a set-off; but the O. P. affirmed the judgment, and awarded costs to the plaintiff; and the defendant now brings error.
    
      J. Benedict, for plaintiff in error
    
      W M. Allen, for defendant in error.
   By the Court, Bronson, J.

The fair inference to be drawn from the evidence is, that the defendant made an advance or loan of money to the plaintiff, to enable him to proceed to Buffalo and execute the warrant. As this was criminal process, the fees were not to be paid by the defendant, but by the county. And besides, nothing was said about fees. The plaintiff, when about to start, asked the defendant if he had any money, and on being answered in the affirmative, he said he had not enough to go with, and wanted $30, which sum the defendant thereupon let the plaintiff have. The plaintiff has presented his account to the board of supervisors for the service which he rendered, and has had the proper allowance against the county. I see no ground on which he can rightfully retain the defendant’s money. He certainly cannot wish to put his case on the ground of taking $30 from the defendant, beyond the fees allowed by law. (2 R. S. 750, § 4.) Such an act is expressly forbidden, and the person offending, is subject to indictment for misdemeanor. (Ibid. 650, § 5, 7.) And see Hatch v. Mann, (15 Wend. 44.) The jury mistook the law, when they gave the plaintiff, as they did in effect by the verdict, $22,23 of the defendant’s money. Although the verdict and judgment were in favor of the defendant, he has sustained a legal injury which may be redressed by certiorari and writ of error.

Judgment reversed.  