People v. Dunning — 1 Wend. 16

Majority

p. 16

The People vs. Dunning, late sheriff of Saratoga.

Headnote

A sheriff is re-money3 received by lus deputy on erroneous process, it coZoif ie3Kg availliehhnse°f ot the defect in the process.

Attachment against sheriff for not returning execution. The defendant, in his answers to the interrogatories filed, state[] that a paper in the form of an execution of this court, test-1 1 ed at Albany, in August, 1824, returnable on the third Monday of February, and not having the seal of the court attache<^ hereto, was received by one of his deputies; that the deputy had received of the defendant in the execution $165; that the money had not been paid over to the sheriff; and that the deputy is insolvent.

p. 17

S. A. Foot, for plaintiff.

S. Stevens, contra.

By the Court,

The only question is, whether the process is void or erroneous. The sheriff supposed it to be void, and that the sureties of the deputy were not responsible to him for the money received' on the execution. This is a mistake. The process was erroneons and not void, and therefore amendable, (4 Cowen, 550;) and the money having been received by the deputy colore officii, his sureties are liable, and the sheriff is responsible to the plaintiff. The party not having applied to set aside the execution, the sheriff cannot avail himself of any defects in it, and must pay the money or stand committed.