
    SUPREME COURT.
    Alice Douglass agt. Joseph L. Haberstro, as sheriff, &c.
    Sheriff— Execution — Teste and, return — When error not to vitiate—What irregularities may be amended—When sheriff not entitled to question validity of— Pleadings■— Evidence—Special matters not admissible umd&r the general issue —Defenses in action- against bail—When not applicable inaction against sheriff—Oode of Qivil Procedure, sections 23,. 24, 599, 723, 1366.
    In an action against a sheriff to• enforce his liability as bail, where it was objected that the plaintiff failed to establish the liability of the sheriff as bail, for the reasons that neither of the executions were tested, and the body execution did not specify the time when it was returnable:
    
      Meld, that, though the executions to have been regular should have been tested, and the body execution should have been made returnable within sixty days after its receipt by the sheriff, the omissions were mere irregularities which did not render the executions void.
    
      It seems questionable whether the omission of the teste made them even voidable.
    
      Held, further, that the irregularities are such as might have been amended, under.section 723 of the Code of Civil Procedure.
    The party against whom the executions were issued not having availed! himself of such defects, the sheriff cannot take advantage of them.
    After the sheriff has by his deputy treated the executions as regular and acted under and made returns to them, he cannot afterwards question, their validity. Proof that the executions were returned by the direction of the plaintiff's attorney, in order that the service thereof might be prevented, is not admissible under a specific or general denial; they constitute or tend to constitute an affirmative defense, and cannot be proved unless pleaded.
    The provision of the Revised Statutes permitting a public officer, when sued for an official act, to give special matters in evidence under the general issue (2 JR. S., 353, sees. 14, 15), is no longer in force.
    An allegation in the amended answer that “ the executions were returned by the deputy having the same in charge, at the request and by the direction of the attorney of the plaintiff in said executions, without the knowledge, privity or consent of defendant (the sheriff),” does not constitute a defense under section 599 of the Code of Civil Procedure.
    The return of the execution by the deputy or under sheriff before the return day was the act of the sheriff and was entirely voluntary on his part for aught that is alleged in the answer, and it constitutes no defense, either under the statute or independently of it.
    
      Fourth Department, General Term, October, 1881.
    Motion by the defendant for a new trial on exceptions taken at the Erie circuit, and ordered to be heard at the general term in the first instance.
    
      Osgoodby, Titus (& Moot, for defendant.
    
      John Campbell Hubbell, for plaintiff.
   Smith, P. J.

— The plaintiff herein sued one Warren, in tort, and caused him to be arrested. The ord er of arrest was served by the defendant herein as sheriff. Warren put in bail, who were excepted to and neglected to justify, and the defendant thereby became liable as bail. The plaintiff recovered judgment against Warren, and issued a property and a body execution thereon successively, which were returned by a deputy of the defendant. Nothing was collected, and Warren was not found. The plaintiff then eom-menced this action against the sheriff to enforce his liability ■as bail.

It was objected by the defendant’s counsel at the trial, and the point is urged here, that the plaintiff failed to establish the liability of the defendant as bail for the reason that neither of the executions was tested, and the body execution did not specify the time when it was returnable. The direction in the latter execution, in that regard, was to return the same “ as required by law.” The point is not well taken. Doubtless the executions, to have been regular, should have been tested (Code of Civ. Proa., see. 28), and the body execution should have been made returnable within sixty days after its receipt by the sheriff (Code, secs. 23, 1366), but the omissions were mere irregularities which did not render the executions void. It is questionable whether the omission of the teste made them even voidable (Code, sec. 24, last clauses), but however that may be, the irregularities are such as might have been amended (Code, sec. 723; The Benedict and Burnham, Manufacturing Co. agt. Thayer, 20 Hun, 547 ; 21 Hun, 615), and the party against whom the executions were issued not having availed himself of such defects, the sheriff cannot take advantage of them (Forsyth agt. Campbell, 15 Hun, 235 ; Dunford agt. Weaver, 21 Hun, 349). Besides, the defendant as sheriff, having, by his deputy, treated the executions as regular, and acted under and made returns to them, cannot now be heard to question their validity (James agt. Gurley, 48 N. Y., 163).

The only other question which need be discussed is whether the court erred in rejecting certain evidence offered by the defendant. The defendant’s counsel offered to prove that the executions were returned by the direction of the plaintiff’s attorney in order that the service thereof might be prevented. The plaintiff’s counsel objected that the proof was not admissible under the answer, and the court so held. When that ruling was made, the answer, as we understand the case, contained no averment of the matters so offered to be proved, and the only question was whether they were admissible under a specific or general denial. That they were not admissible, is clear. They constituted, or tended to constitute an affirmative defense, which could not be proved unless pleaded. The provision of the Revised Statutes, permitting a public officer when sued for an official act, to give special matters in evidence under the general issue (2 R. S. secs. 14,15) is no longer in force. Hr. justice Grover said, in Richtmeyer agt. Remsen (38 N. Y., 206, 208), that it was repealed by the Code of Procedure. If that Code left it in force for any purpose, it was expressly repealed in 1877, before this action was commenced (Laws of 1877, chap. 417, sec. 1, part 3, subd. 5).

After the ruling above stated had been made, the court permitted the defendant to amend his answer, as we read the case, by adding to it a defense in these words : “ The defendant alleges that each of the alleged executions set forth in the complaint was returned by the under sheriff and deputies of the sheriff of Erie county, having the same in charge, at the —-request and by the direction' of the attorney of the plaintiff in said executions and this action, without the knowledge, privity or consent of defendant; and defendant denies that said executions were duly issued or duly returned as set forth in said complaint. And this defendant alleges, upon information and belief, that said plaintiff’s attorney in the executions and this action, requested and directed said executions to be so returned that he might commence this action against defendant, and that in form the law might seem to be complied with, and that said returns were made at the request and by the direction of said plaintiff’s attorney in said executions and this action, as herein stated, and not otherwise.” After the answer was so amended the-defendant’s counsel made several offers of evidence, none of which need be considered except the offer to prove the facts alleged in such answer. Although that particular offer does not appear to have been acted upon in any way at the trial, we gather from the case, and especially from that0, part of it which immediately prepedes the offer, that the trial judge ruled that the third or amended answer did not constitute a defense. Was that ruling error ?

It is provided by section 599 of the Oode of Oivil procedure, that in an action' against bail, it is a defense that a direction was given, or other fraudulent or collusive means were used, by the plaintiff or his attorney, to prevent the service of an execution against the property, or against the person of the defendant in the original action. The amended answer was evidently drawn with a view of presenting a defense under that section, but it failed to do so. The gist of the defense described in the section is the fraud practiced by the plaintiff in the execution upon the bail. But no fraud upon the sheriff is alleged in the answer, nor could there have been any, in view of the facts alleged, since he was a party to the transaction, by his under sheriff or deputy, whose official act was his own. If the deputy had colluded with the plaintiff or his attorney to defraud the sheriff, a different case would have been presented, but that is not averred. The return of the execution by the deputy or under sheriff, before the return day, was the act of the sheriff and was entirely voluntary on his part, for aught that is alleged in the answer, and it constitutes no defense, either under the statute or independently of it. The offer was properly excluded.

All the other offers, to which reference has been made, either fell short of the allegations in the amended answer or exceeded them, and in either case, were inadmissible.

The motion for new a trial should-be denied, and judgment ordered for the plaintiff on the verdict.

Haebih, J., and Haight, J., concurred.

So ordered.  