Majority
p. 529Hinman against Brees, Sheriff, &c.
Headnote
In an action of sheriff*8?™ ae somir in execution on a ca«, sa ; ta™} evidence is admissible to | f °" be'e ex ¿cu? the sheriff, and the arrest of the party thereon ; the defendant having neglected to return and file the ca. sa., and having refused to produce it at the trial, though due notice, for that purpose, had been given to him before trial.It is the duty of the sheriff to return a writ wíthoiit a rule' of court for that purpose; and he canhot avail himself of his neglect of duty, to defeat the plaintiff’s action.
Where, on a judgment in a bailable action, a ca. sa. is issued without aJi.fa. having been previously issued, and returned nulla bona, pursuant .to the statute, the sheriff* in an action against him for an escape, cannot avail himself of the irregularity; but application must be made to the court, to set aside the ca. os the ground qi such irregularity. ' *
THIS was an action of debt for an escape, brought against the defendant, sheriff of Rensselaer county. The cause was tried before Mr. Justice Spencer, at the Rensselaer circuit, i n " June last It was admitted that the plaintiff had obtained a 1 regular judgment against William Le Barrow, in the court of common pleas of Rensselaer, in August, 1815, for 216 dollars
p. 530
$5 cents; and the defendant - was called uponrat the trial, té,' produce the .ca, sa. issued on the judgment, which- was' stated .not to -.have been returned by the defendant, but w,aS still in his possession, due notice having been given to the defendant to produce, the >rit. The defendant’s counsel refusing tb produce fhe ca. sa,, the .plaintiff offered parol evidence to prove the' issuing .of the writ, and the arrest of X Barrow thereon the evidence was objected to, on the ground that the ca. sa. Was! patter of record, and the return of it might have been “enforced by a rule of court. The judge Overruled, the objection-; 'and a ■witness tor the plaintiff testified, that on the day preceding the trial, the defendant’s counsel-showed him the ca., sá., -whicia’ was endorsed as paving been received by the defendant the 3d of November, 18-15 -, and-that one of the deputies of the defendant told the witness,' the next day, that the plaintiff delivered the c.a sa. to him, on. the- 3d of November, 1815, ’to bo executed ; and that, on the same day, he, the deputy sheriff, arrested -X- Barrow, by virtue ,of the writ, but who, afterwards, on'’the evening of that day, made his escape. The.writ was dat'ed tfib ?d of,September, and returnable fhe las t Monday of November, ?815.
The defendant then'offered to prove, that the action -on which the judgthent was obtained against X Barrow .was a bailable action, and that special bail was, in fact, put in, and nóexcéption made to its sufficiency; that the plaintiff, before issuing the ca; sa,, had sued out and delivered to the defendant a fi.fti., on the-same judgment, dated the 2b of September? and returnable the last Mondap oi November, 1815, and which was not returned kí,nul« la. bona" by .the defendant, and filed in the clerk’s office, until the last Monday oí November., 1815 .; and that no other,Ji. fa, was ever issued on that judgment, but both of the said writs Were in the possession of the defendant at-the- same timéy T.bis -evidence was objected to by the plaintiff’s counsel, and pverruledby the judge, and thejury, under his direction,,'found á yprdict for thp plaintiff.
A motion-was made for a new-trial,.on the .part'of .the de?fendant, yvhich was.submitted to the court withpul argument, on ■p cagpli# above .stated.
This is an action bf debt-ágalnSt the defend-? fRb fef the aspppe of a prispner ipx custody, on gi'éa, sa.$ áiicf
p. 531
the questions which are presented by the case relate to the sufficiency of the proof of the execution, and whether it was re gularly issued or not. Notice to produce the éxecution on the trial had been duly given, but it was not produced; and whether secondary evidence of the existence of the execution was admissible, was one question agitated upon the trial. It Was stated by the defendant’s counsel, that the execution had not been returned, but was still in the defendant’s possession. But parol proof of it was objected to, because the sheriff should have been ruled to return it, and the execution itself, or an exemplification of it, produced. The objection was properly overruled, and the parol proof established the issuing of the execution and its contents. There is no doubt but the sheriff might, have been ruled to return the execution. It was his duty to have done this without being ruled, and he ought not to be permitted to avail himself of his own neglect of duty, to defeat the plaintiff’s action, on a mere technical objection.
• The irregularity complained of is, that the ca. sa. was issued before any fi. fa. had been returned nulla bona, according to the statute, special bail having been required in the original action Admitting the irregularity, it was an objection which the sheriff could not avail himself of in this collateral way ; but application should have been made to the court to set aside the execution.
The motion for a npw trial must, accordingly, be denied.
New trial refused,