p. 681Fake v. Edgerton & Britton.Headnote
Executions, to be valid, need not state the time or place of their return.One against the body may issue short of sixty days, after the return of one against property. The former need not recite facts showing the right to arrest a defendant.
It is enough that he was held to bail by a valid order which continues in force.
Defendant Edgerton moves to set aside an execution against his person, on which he has been arrested. The defendants were held to bail by an order still in force. Judgment was perfected on the 3d, and a transcript filed July 7th, 1856. An execution against defendant’s property was issued to the sheriff of Hew York city and county that day, and returned unsatisfied August 5th.
The ca. sa. was issued September 3d, and is endorsed with directions to arrest Edgerton only. He now moves to set it aside, because, 1st. Ho place or time, where or when it is to be returned, is mentioned in it. 2d. Sixty days had not elapsed between the issuing of the two executions. 3d. That defendant being a resident of Kings, an execution against his body was irregular, until one against his property had been issued to that county, and returned. 4th. It does not appear on the face of the ca. sa. that it was issued by order of the court, or that the action was one in which the defendant could be arrested.. 5th. Directions were endorsed to arrest only one defendant, while the judgment is against two, as joint contractors.
H. Buckman, for plaintiff.
D. McMahon, for defendant.
held, that section 289, which prescribes the form of the execution, does not require a return day to be named in it. The sheriff is required by section 290 to return it within
p. 682sixty days after he receives it. The duty which that section imposes, need not be stated in the body of the execution.
It is not necessary that sixty days should intervene between the issuing of the two executions. It is enough that the first has been actually returned by the sheriff, when he, has acted boná fide. (§ 288.)
To charge bail, it was necessary before th.e Code, to issue .a fi. fa. to the county in which the defendant was arrested. That was done in this case. The Code has not required one to be issued to the county where the defendant resides.
The ca. sa., on its face, states all which section 289 requires. It is enough to justify the execution, that an order was made holding the defendant to bail,-which is still in force. (2d Seld, 560.) Whether that order may properly form part of the record it is urn necessary to decide.
It is not easy to perceive why one defendant,, liable- to be arrested, should complain that another, by instructions from the plaintff, though equally liable, has not been.. The execution is.regular in form, and such instructions do not authorize the release of a party rightfully arrested under it.. Motion denied, with, five dollars costs,, .