Rawdon v. Benedict

1 Sarat. Ch. Sent. 48, 1841 N.Y. LEXIS 439

• Court: Saratoga Chancery Court
• Decided: July 20, 1841
• Status: Published

Opinion

This was an application to set aside an order for the appointment of a receiver upon a creditors’ bill, on the ground that the defendant had sufficient property to pay the judgment against him, but that the sheriff returned the execution nulla bona without attempting to levy on such property or informing defendant that he had such an execution. The court held that the defendant could not set up such false return of the sheriff as a bar to the creditors’ suit in this court,—there being no pretense of collusion between the sheriff and the plaintiff’s attorney; that the remedy of the defendant in such a case is to pay the debt and costs, and sue the sheriff for the extra costs and expense to -which the defendant has been put in consequence of the false return. Motion denied, with $10 costs.