Hinman v. Brees

13 Johns. 529

• Court: New York Supreme Court
• Decided: October 15, 1816
• Status: Published

Opinion

^er Curiam..

This is an action bf debt-ágalnSt the defend-? fRb fef the aspppe of a prispner ipx custody, on gi'éa, sa.$ áiicf 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,