
    Dakin against Hudson, Sheriff of Columbia.
    UTICA,
    Aug. 1826.
    On demurrer to the declaration. The first count was in debt for $200. “ For that whereas, by a certain final judgment or decree, made before Abraham A. Van Burén, Esquire, surrogate of the county of Columbia aforesaid, in a certain matter depending before said Abraham A. Van ⅜ 1 ° . . , Burén, surrogate of the county aforesaid, wherein Anson Bakin and others, heirs at law of Joshua Dakin, deceased, were plaintiffs, and Abner Bristol and Lydia Bristol bs wife, administrator and administratrix of the estate of the said Joshua Dakin, deceased, were defendants, concerning the administration and distribution of the estate of the said Joshua Dakin, deceased, it was, among other things, heretofore, to wit, oii the 9fA of November, A. D. 1823, in due form of law, ordered, adjudged and decreed by the said surrogate, that the said Abner Bristol and Lydia Bristolhxs wife, administrator and administratrix as aforesaid, pay to the said Anson Dakin, the sum of 78 dollars and 64 cents, as by the said decree remaining as of . 
      record in the office of the said surrogate, doth and may more fully appear. And whereas the said Abner and Lydia, having neglected and refused to perform the said order and decree, and to pay the sum thereby adjudged to the said plaintiff, and the said judgment, order and decree remaining in full force, not annulled or reversed in any way, the said plaintiff, for having execution of the said order, judgment and decree, afterwards, to wit, on the 8th day of November, A. D. 1824, sued and prosecuted out of the said court of the said surrogate, before the said surrogate, according to the form of the statute in such case made and provided, (a) a certain process or execution upon the ' ⅞ said judgment and decree, against the said Abner Bristol, directed to the sheriff of the county of Columbia, by which said writ or process, the said sheriff was commanded to take the said Abner Bristol, if he should be found in his bailiwick, and him safely imprison, until he should perform the said sentence and decree, or until he should be delivered by due course of law. Which said writ, afterwards, and before the delivery to the said sheriff of the county of Columbia, aforesaid, to be executed as hereafter mentioned, was duly endorsed, with a direction to the said sheriff, requiring him to receive 78 dollars and 64 cents, and interest, from the 9th of November, 1823, and 2 dollars and 13 cents, surrogate’s fees of the said attachment or process, besides sheriff’s fees, and which said writ or process, so endorsed as aforesaid, afterwards, to wit, on the 10th day of November, 1824, to wit, at Hudson, in the county aforesaid, was delivered to the said Samuel E. Hudson, w'ho then was, and still is sheriff of the county of Columbia, aforesaid, to be executed in due form of law. By virtue of which said writ or process, and of the said endorsement so made thereon as aforesaid, the said Samuel E. Hudson, so being sheriff of the county of Columbia, aforesaid, af-terwards, to wit, on the 18i/i day of December, A. D. 1824, and within the bailiwick of the said sheriff of the county of Columbia, aforesaid, to wit, at Hillsdale, in the said county, took and arrested the said Abner Bristol, by his body, and then and there, by virtue of the said process, and of the said endorsement so made thereon, as aforesaid, had and detained him in his custody for the said sum of 78 dollars and 64 cents, and interest from the 9th of November, 1823, and 2 dollars and 13 cents, surrogate’s fees of the said attachment or process, besides sheriff’s fees, so endorsed on the said writ or process, as aforesaid, and kept and detained him in his custody, from thence, until the said defendant, so being sheriff of the county of Columbia, as aforesaid, afterwards, to wit, on the said ISth day of December, A. D. 1824, at the city of Hudson, in the county aforesaid, without the leave or license, and against the will of the said plaintiff, voluntarily suffered and permitted the said Abner Bristol to escape and go at large. And the said Abner Bristol did then and there escape and go at large, wheresoever he would, out of the custody of him, the said defendant; he the said defendant, so then being sheriff of the county of Columbia, aforesaid ; and the said sum of 78 dollars and 64 cents, with interest from the 9th of November, 1823, and the said sum of 2 dollars and 13 cents, surrogate’s fees of the said process, so endorsed on the said writ or process as aforesaid, being then and still wholly unpaid and unsatisfied to the said plaintiff, to wit, at Hillsdale, in the county of Columbia, aforesaid, whereby,” &c.
    
      debt, against suffering an escape from execution on a surrogate's dis" Form of deJ
    Such a de-aver) tllat lhe surrogate’s made the de-tration.
    w¡se> ⅛ has no jurisdiction to bution.
    a 1 proceeding of 011 inferior jurisdiction,
    lhe facts necessary to give it jurisdiction, must he set forth, and then the pleader may say taliter processum full.
    
    The surrogate's court is a creature of the statute ; and in pleading its decree, it must be shown affirmatively, that the facts upon which it acted, gave jurisdiction of the subject matter and the persons.
    In a declaration against the sheriff, for suffering an escape from execution, it is not good cause of demurrer, that the judgment appears to be against Ji. and his wife, and the execution against A. only ; nor that the execution appears to have been endorsed with a direction to receive interest, when no interest runs on the judgment; nor that the judgment and execution appear to be in favor of D. and others, without saying what others.
    Any or all of these defects in (he proceedings, are no excuse to the sheriff who suffers the escape.
    Such a declaration must describe the record and proceedings correctly ; and if, when produced on the trial, they do not correspond, the objection may then be made on the ground of variance.
    Such a declaration, set out in the first count, a surrogate’s decree, execution to the sheriff, and a voluntary escape. The second count set out a similar decree, execution, &c. and an involuntary escape. In setting out the decree, this 2d count said, a certain other judgment or decree, but then dropped the word other, and referred to the judgment, &c. by the word said, it set forth the execution as issued on the last mentioned judgment* Sic.; but afterwards referred to this execution by the word said; on general demurrer to the whole declaration, held well, and that there was no repugnancy between the two counts.
    
      CO StCltm SCSS» oU| eh. 79, s. u, 4481 R L'
    
    
      The second count was substantially the same, except that it was for an involuntary escape. It set forth a certain judgment or decree, &c. as a certain other judgment or decree, but then dropped the word other, and referred to this judgment or decree, by the word said. It mentioned the execution as one upon the said last mentioned judgment, &c. and then referred to the execution by the word said.
    
    General demurrer and joinder.
    
      D. B. Tallmadge, in support of the demurrer,
    took five exceptions : 1. That the execution should have issued, both against administrator and administratrix.
    
      2. Interest is not collectable upon the decree of a surrogate<
    3. The declaration describing the decree or judgment, as between “ John Dakin and others,” plaintiffs, &c. it is bad. (1 Saund. 37. 11 East, 516. 1 Chit. PI. 355. 2 id. 147. Com. Dig. Pleader, (2 TV. 12.)
    4. The declaration does not give jurisdiction to the surrogate. (Archb. Plead. 162. 1 Saund. 92, n. (2.) 3 Cowen, 206.)
    5. The counts are repugnant to, and inconsistent with each other. (Bac. Abr. Pleas and Pleading, (B) T, 1 Chit. PI. 397. 1 Salk. 213. 2 Ld. Raym. 842.)
    
      C. Bushnell, contra,
    cited Seymour v. Seymour, (4 John. Ch. Rep. 409.)
   Curia, per

Savage, Ch. Justice.

The defendant makes five objections to the sufficiency of the declaration.

First, it is said, the execution should have been issued against Bristol and wife ; and secondly, that interest is not recoverable. If these objections were well founded, the sheriff would not, therefore, be at liberty to suffer an escape ; nor would he, if the third point be tenable. The declaration must describe correctly the record and proceedings it purports to set out; and if the record or proceedings produced on trial do not correspond with the description, the objection may be taken for the variance.

But it is objected, fourthly, that the declaration does not give jurisdiction to the surrogate ; and it seems to me that this objection is unanswerable. The construction given to the act, (1 R. L. 448, s. 11, 12,) by the late chancellor Kent, (4 John. Ch. Rep. 410, 11,) is, that the surrogate granting administration, has power to call the administrator to account. I think jurisdiction belongs to that surrogate’s court alone which granted the administration. It is not averred in this declaration, either that the surrogate of Columbia county granted administration, or that he had jurisdiction cf the matter.

The rule is, that the pleading, relying on a proceeding of an inferior jurisdiction, must set forth the facts necessary to give*jurisdiction ; and it may then say, taliter pro-cessurn fuit, &c. Such summary proceedings are contrary to the course of the common law. The surrogate’s court is entirely a creature of the statute. It should be shewn to the court affirmatively, therefore, that the surrogate had power to make the decree ; that the facts upon which he acted, gave him jurisdiction of the subject matter, and of the persons before him.

There is nothing in the last objection, that the counts of the declaration are repugnant.

The defendant is entitled to judgment on the demurrer, with leave to the plaintiff to amend on payment of costs.

Judgment for the defendant.  