
    Charles French v. James C. Willet, Sheriff, &c.
    1. In an action against a Sheriff for not delivering to his successor in office a prisoner taken by him and committed to jail on an execution against the body, averred to have been duly issued upon a judgment in an action brought to recover a debt which was fraudulently contracted, it is not essential that the complaint should also state that an order for the arrest of the defendant was obtained.
    2. Where an execution is regular on its face and there is no defect of jurisdiction, neither irregularity nor error in issuing the execution will -justify the Sheriff in refusing or neglecting to execute it.
    3. Otherwise if the execution be void.
    4. A complaint, which, after stating the due commitment of the prisoner by the defendant as Sheriff to the county jail, then proceeds to state the expiration of the term of the defendant’s office, the election of a new Sheriff, the due qualification of the latter and the service upon the defendant of the certificate of the County Clerk that such new Sheriff had qualified and given the security required by law, (2 E. S., 438,) and avers that the defendant did not, within ten days after such service, deliver to the said new Sheriff the prisoner, then in the defendant’s custody on the said execution and confined within the jail liberties, shows a clear and explicit neglect of duty and violation of the statute for which the defendant is liable, and is enough to put the defendant to his defense.
    (At Special Term. Before Woodruff, Ch. J.,
    January 19th, 1860.)
    Demurrer to complaint, on the 'ground that the same does not state facts, sufficient to constitute a cause of action against the defendant.
    The complaint stated the recovery of a judgment by the plaintiff in this Court for $12,588.56 against one Plin White. That the action was brought to recover the amount of a debt fraudulently contracted, the issuing to the defendant of an execution against the property of the said White, and its return by the defendant unsatisfied. That, thereupon, on the 14th of April, 1856, an execution against the person of the said White was duly issued to the defendant, who was then Sheriff, and was delivered to him as Sheriff by which he was required to arrest the said White and commit him to the jail of the county until he should pay the judgment or be discharged according to law. That the defendant, as such Sheriff, arrested the said White on the said execution, and committed him to the said jail. That on the 1st of January, 1859, the defendant’s term of office as Sheriff expired, and that a new Sheriff, to wit, John Kelly, was elected Sheriff in his place, and duly qualified and gave the security required by law. That the certificate of the clerk of the city and county under his official seal, that the said Kelly had duly qualified and given security was duly served on the defendant on the '11th day of January, 1859. And that “ the defendant did not, within ten days after the service on him of such certificate, deliver to his successor, the said new Sheriff, the said Plin White who then remained in the custody of the said defendant on the said execution confined within the liberties of the jail of the city and county of New York.”
    Wherefore, the plaintiff prays judgment for the sum of $12,-588.56, with interest thereon; damages by him sustained by reason of the premises, with his costs, &c.
    
      A. J. Vanderpool, for the defendant in support of the demurrer.
    I. The plaintiff has not shown a valid execution against the person. The complaint does not aver that an order of arrest was obtained, nor a judgment for a cause of action which per se warrants an arrest, nor facts showing that an order of arrest might have been obtained. (Corwin v. Freeland, 2 Seld., 560; 6 How., 241; Alden v. Carsen, 4 Abb., 102.)
    Whenever the execution is void, that is a defense to the Sheriff. (Jones v. Pope, 1 Saund. R., 38 [6]; Turner v. Eyles, 3 Bos. & Pul., 456; Brazier v. Jones, 8 B. & C., 124; Edwards v. Lucas, 5 id., 339; Ginochio v. Orser, 1 Abb., 433.)
    The allegation that the action was brought to recover the amount of a debt fraudulently contracted is. not sufficient; A demurrer admits only facts which are well pleaded. (Wells v. Jewett, 11 How., 242; Graham v. Machado, 6 Duer, 514; Lawrence v. Wright, 2 id., 673.)
    II. The question, what is an escape, is now defined by statute. (2 R. S., 434, § 47, 437, §§ 61-63; 3 id., 746, note to § 47.)
    Escapes must now be actual. (Johnson v. Macon, 1 Wash. R., [Ct. of App., Va.] 4.)
    White did not escape. No escape is alleged.
    
      III. The failure of the old Sheriff to deliver over the prisoner does not relieve him from custody. The new Sheriff may take him and may compel the delivery of the process, &c. (2 R. S., 439, § 73.)
    The statute gives no action against the Sheriff for not delivering, nor has it declared that it shall be deemed an escape. Such neglect does not work a general jail delivery.
    Until the prisoners are delivered they remain in the custody of the old Sheriff. (Hempstead v. Weed, 20 J. R., 64; Curry v. Worthy, 2 Jones [N. C.] R., 104.) Our statute is only declaratory of the common law rule. (See Revisers’ Notes, 3 R. S., 748, note to § 69; Partridge v. Westervelt, 13 Wend., 500; Arthur v. Bokenham, 11 Mod., 150; see also Hinds v. Doubleday, 21 Wend., 223; 28 Barb., 614.)
    
      Jno. B. Parsons, for the plaintiff.
    I. The statute peremptorily requires the old Sheriff to deliver to his successor all persons confined, &c., within ten days after service of the certificate of the County Clerk. (2 R. S., 438, §§ 88, 89, 90.)
    II. A person confined on civil process, if not so delivered to the new Sheriff, is at liberty to go at large, and the new Sheriff cannot control him. (Hinds v. Doubleday, 21 Wend., 223; Partridge v. Westervelt, 13 id., 500; Crocker on Sheriff, 5, § 7.)
   Woodruff, J.

1. The 179th section of the Code of Procedure authorizes the arrest of a defendant when he has been guilty of a fraud in contracting the debt for which the action is brought. The 288th section provides that an execution against the person of the judgment debtor may be issued “if the action be one in which the defendant might have been arrested as provided in section 179.”

The averment that the plaintiff recovered a j udgment in an action against the defendant therein, which action was brought to recover the amount of a debt fraudulently contracted, shows a case in which, therefore, by the terms of sections 179 and 288, the plaintiff had a right to have an execution against the person of the defendant. The court had jurisdiction of such an action, and power to issue such an execution in the case which is stated. The farther averment, that the execution was duly issued, is, at most, all that .is, as against the Sheriff, necessary to show that it was his duty to execute the writ. Such an execution is regular on its face, and is issued by competent authority; and, upon the facts alleged, the plaintiff was, prima facie, entitled thereto.

If it was necessary to the regularity of an execution against' the person of the debtor that an order of arrest should have been previously obtained, it does not follow that such an execution would be void though issued without such an order. . That question relates to the regularity of the process, and to its legal validity,, as against the debtor. He may acquiesce therein, or may move to discharge the process; but where there'is no defect *’of jurisdiction, neither irregularity nor error in issuing the execution will justify the Sheriff in refusing or neglecting to execute it.

This doctrine has been often discussed in the analogous case of actions against a Sheriff for the escape of a prisoner taken on a ca. sa. In such an action, the Sheriff cannot require the plaintiff to allege affirmatively the successive steps upon which the regularity of the process depends, no more than, on refusal to execute an order of arrest before judgment, he can require the plaintiff to allege that the Justice approved the sureties taken on granting such an order. As to the Sheriff, the process being regular on its face, and the Court or Justice having jurisdiction, omnia presumuniur rite esse acta.

This distinction between void process and that which is irregular, erroneous and voidable, is familiar, and was substantially conceded on the argument. (Bushe’s case, Cro. Eliz., 188, where a ca. sa. had been issued more than a year and a day after judgment without a previous sci.fa.; Shirley v. Wright, 2 Salk., 700; Jaques v. Cesar, 2 Saund., 101, e, note 2, p. 101, y; Bissell v. Kip, 5 Johns., 100; Jackson v. Walker, 4 Wend., 464; Ontario Bark v. Hallett, 8 Cow., 192; Savacool v. Boughton, 5 Wend., 170; Ames v. Webbers, 8 id., 545; Parmelee v. Hitchcock, 12 id., 96; Ginochio v. Orser, 1 Abb., 433.)

To this view of the subject it may be added that, if there exist extrinsic facts which, being shown, render the arrest invalid, the Sheriff must show them as a defense; so that, if the want oí an order of arrest, made before judgment, would entitle the debtor to be discharged or to set aside the execution, and it were conceded that that would avail the Sheriff as an excuse for not detaining him, it is matter of defense.

2. In regard to the gravamen of the action, to wit, the averment that the defendant (the Sheriff) did not deliver- the debtor, then being in custody, &c., to his successor, the new Sheriff, the complaint states the expiration of the defendant’s term, the election of his successor, that the latter qualified and gave the security required by law, and that the Clerk of the county granted the certificate of such qualification and the giving of security by the new Sheriff, and the service of such- certificate on the defendant.

The statute provides that, “ upon the service of such certificate on the former Sheriff, his powers as such Sheriff, (except when otherwise expressly provided by law,) shall cease,” (2 R. S., 438, § 89 [68];) and, “ within ten days after the service of such certifi cate upon such former Sheriff, he shall deliver to his successor, 1st, the jail * * *; 2d, all prisoners then confined in such jail; 3d, all process * * * authorizing or relating to the confinement of such prisoners; * * (Id.-, §90 [69].) Section 91 [70] provides for the execution of an instrument reciting the property, process, prisoners, &c., delivered. And section 94 [73] authorizes the new Sheriff, in case the other neglects or refuses to deliver, to take possession of the jail and custody of the prisoners, and to compel the delivery to him of such process and documents.

The statute has thus explicitly' defined the duty of the defendant. The plaintiff had an interest in his performance of that duty, by-delivering the plaintiff’s debtor, held by him in execution of the judgment, to the new Sheriff. In the case of Hinds v. Doubleday, (21 Wend., 228,) where the prisoner, as in this case, was on the limits or liberties of the jail, Bbonson, J., expresses a decided opinion that, after the expiration of the ten days, if there be no assignment of the prisoner to the new Sheriff, the latter cannot detain him, and that he is no longer in the custody of the old Sheriff, whose power over him is at an end; that, in such case, the prisoner may go at large.

It is not necessary to sustain the present complaint that the power of the new Sheriff to take the prisoner should be denied. It is sufficient to say, that the averment that the defendant (the Sheriff) did not deliver the debtor held under the execution to his successor in office, shows a clear and explicit violation of the statute and breach of the duty which the defendant owed to the plaintiff. Eor this the defendant is, prima facie, liable. This is enough to put him. to his defense. He is, in every aspect of the case, (this averment being admitted, and no excuse or avoidance of liability being set up,) liable to nominal damages at least.

If, in truth, the defendant, by delivery of the jail, and the execution of an instrument reciting the property, process and prisoners delivered, complied with the statute, that will be a subject of proof on denial of the plaintiff’s averment.

If the prisoner remained in custody under such circumstances that the new Sheriff had a right to hold him, and did hold him, or if the new ■ Sheriff did, notwithstanding the neglect of the defendant to deliver him,- take the prisoner into his possession under section [73] 94 of the statute in such wise that he had a right to detain him, and does detain him in custody, this may be available in mitigation of damages or perhaps to show that no damages have been sustained; but, as the case stands in the complaint, a cause of action is shown, to which the defendant is bound to answer, or he is liable.

This is, I think, the necessary result of the provisions of the statute, (2 R. S., 438, 439, §§ [67-73] 88-94,) and the inevitable inference from the opinion of the Court in Binds v. Doubleday, above referred to.

The demurrer must.be overruled, with costs, with leave to the defendant to withdraw his demurrer and answer within twenty days, on payment of the costs of the demurrer and proceedings thereon.

Ordered accordingly.  