
    James W. Paige, etc., Respondents, v. James S. Willet, Appellant.
    This case generally is an apt illustration of the complications that may arise from an effort to prove too mmh; that is, more than enough to substantiate the allegations in the complaint.
    The following points are incidentally brought to view in the opinions:
    1. A defendant is not at liberty to raise an issue which he has closed by admissions in his answer, or stated in another form.
    2. A defendant who explicitly admits, by his pleading, that which establishes the plaintiffs’ right,vwill not be permitted to deny its existence, or to prove any state of facts inconsistent with that admission.
    3. General exceptions to the charge of the judge are unavailable upon appeal.
   Bacon, J.

Upon the trial of this cause, it would seem to have been the effort of counsel on both sides, or at least such was the result of their efforts, under a cloud of testimony, to obscure the real merits of the controversy. The question in issue was a very simple one, presented directly by one or two allegations in the complaint, not only not denied, but distinctly admitted by the answer, and all beyond these, both in the pleadings and the evidence, seems to me to have been quite superfluous. The action was to recover the balance alleged to be due on an execution issued upon a judgment recovered by the plaintiffs against Lewis 0. Wilson and others, and which had been delivered for collection to the late sheriff 'of the city and" county of Hew York, who was the original defendant in this suit. The complaint avers the recovery of. the judgment on the 5th day of August, 1858, for the sum of $8,753.36, and the delivery of an execution thereon on the same day to the sheriff. It then avers, in the fourth clause or subdivision of the complaint, that the sheriff, by virtue of such execution, levied on the personal property of the judgment debtor, Wilson, and collected, for the use of the plaintiff, the sum of $8,753.36, with interest thereon from the date of said judgment, besides his lawful fees and poundage.” It also avers a return of the execution on the 29th of ISTovember, 1859, and the payment to the plaintiffs’ attorneys of the sum of $8,753.36, and no more, and which was paid to and received by them on account of the amount due upon the judgment for principal and interest, and it winds up by averring that the plaintiffs have sustained damages by reason of the neglect to pay over the money thus received, and demands judgment therefor.. There are other matters stated in the complaint, but, in view of the question really presented, I deem them entirely immaterial and requiring no special notice.

The answer of the defendant, while denying any knowledge, etc., of the recovery of the judgment, contains the following admission: “ The defendant admits that he received a paper purporting to be an execution based upon the alleged judgment, and that he collected thereon the amount as mentioned in" the fourth subdivision of said complaint.” After denying other matters stated in the complaint, the answer then sets up, by way of partial defense, that, in consequence of certain motions and proceedings in the courts, the defendant was stayed and restrained from paying in any of the said moneys for a certain period while these motions were pending; and, by way of further answer, that, by virtue of an order of court, he had paid over to the plaintiffs the sum of ninety dollars toward any amount which might remain or be due to them under and by virtue of said execution.

Upon this state of the pleadings, the parties went down to trial. All the plaintiffs were required to prove to entitle them to recover was the judgment and execution, its receipt and collection by the defendant, and the balance due after allowing the payment of ISTovember 29,1859. This was done, and the plaintiffs furthermore, and quite unnecessarily, it seems to me," introduced the deposition of Joseph D. Bates, proving the circumstances under which he paid over the sum of $15,544.15 to Cornell, the deputy sheriff, who seems to have held certain attachments upon the property of Wilson, one of the judgment debtors, and also proved the service of notices upon the defendant to return the execution in favor of the plaintiffs, and then rested.

The defendant’s counsel then moved to dismiss the complaint upon five grounds, every one of which proceeded upon an assumption entirely at war with, and utterly disproved by, the express admissions of the answer, and the proof furnished by the defendant himself in the receipt indorsed upon and "returned with the execution, and the motion was very properly denied by the court.

The defendant then went into a course of proof touching various proceedings in the courts to set aside and vacate the attachment which had been procured by the plaintiffs, showing also the issuing of several other attachments by other parties, the orders of the courts upon the motions above mentioned, and other proceedings by the plaintiffs to compel the defendant to pay over the moneys claimed of him, all of which seem to have resulted in nothing but an order that the defendant pay ninety dollars to the plaintiffs, and which payment was proved to have been made, and, having thus accumulated a mass of testimony, the most of which was entirely outside of the pleadings, and tended only to confuse the case, wound up with another motion “ to dismiss the complaint founded substantially upon the same grounds as those stated in the motion at the close of the plaintiffs’ testimony. The grounds urged upon the motion are, in substance, that there was no proof of a levy under the execution, that, if any was made, it was under an attachment, that the money was Returned by defendant under orders and by consents relating to motions, that no liability for interest was' shown, and that the sheriff could not legally make a second levy on moneys already held by him under attachment. There was another ground stated in reference to the rule of damages which obviously requires no notice, since it could only be urged, if anywhere, upon a direction or request to charge the jury, and not as a ground of dismissing the complaint.

I do not deem it necessary to discuss the propositions urged by the defendant’s counsel in detail, since, as I have already suggested, they are all met and effectually disposed of by the averments in the complaint and the admissions in the answer.

While the answer stood upon the record, the defendant was not at liberty to raise an issue which he had emphatically closed. He had surrendered his right to call upon the plaintiffs for proof of a levy, a collection, or to question his liability to pay interest, for all these had been expressly admitted by the answer and the proof furnished out of the mouth of the defendant. It is no answer to say that the plaintiffs had voluntarily gone beyond these admissions and opened up an inquiry;which the defendant was at liberty to pursue, and that this means escape from the effect of his own foreclosure. This may have been an unwise, as I think it was a very unnecessary procedure on the part of the plaintiffs, but it does not help the defendant’s case, nor enable him to avoid the effect of his own admissions. Such admissions are conclusive upon the parties litigant, and upon the court, and no countervailing evidence can properly be received, or, if it is, either through inadvertence or by tacit consent, foisted into the case, it is entitled to no consideration. A mere denial in an answer will not allow a defendant to insist upon a fact brought out by the plaintiffs’ evidence, although, if- the matter had been set up by way of defense, it would have availed to defeat the action. (Brazil v. Isham, 2 Kern. 9.) For a still stronger reason, a party, who formally and explicitly admits, by his pleading, that which establishes the plaintiffs’ right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission. Ho application was made to the court to be relieved from the effect of this admission, or to weaken or modify its full import; and, while it thus stood, in the language of Woodruff, J., in Robbins v. Codman (4 E. D. Smith, 325), “ after such an admission, it was not necessary for the plaintiffs to prove it, nor would it be permitted to the defendant to deny it.” •

It was urged upon the argument, that, conceding the money paid to the attorneys of the plaintiffs on the 29th of Hovember, 1859, was collected on the execution, this suit could not be maintained, because the receipt operated as a full discharge (having been given with knowledge of the fact), of the cause of action. There are two answers to this; First, this point was nowhere taken or insisted upon on the trial, and second, the receipt does not, in terms, express that the money was received in satisfaction of the execution, hut, as its language implies, on account of the execution, and there is not a particle of proof in the case that the attorneys had knowledge of any facts which would estop them or the plaintiffs from claiming the balance, which, from the very first, they had constantly insisted was due.

The proof as to Cornell’s deposits, although, as I think, quite unnecessary, was not irrelevant in the view with which the inquiry was made, since, if the question had arisen in another aspect, it might be important to know what disposition he had made of funds which he had clearly received on account in part of the plaintiffs, and whether they had been mixed with his own in such a way as to make the defendant liable for interest on another ground.

No valid exceptions were .taken to the charge of the judge! They are too general to be available. If the principles on which the judge calculated the amount the plaintiffs were entitled to recover were erroneous, the counsel should have stated in what respect the judge failed to give the right direction, and should have submitted his own rules, or stated what different result he claimed the evidence would lead to. Without this, the exception amounts to nothing, and was very properly disregarded. But I am inclined to think that an error, perhaps inadvertent, was committed by not allowing, in the computation, the sum of ninety dollars and interest, which had been paid by the sheriff, and this should be corrected, and, with this modification, the judgment should be affirmed, but without costs of this appeal to either party.

Woodruff, J.

The complaint alleges the recovery of judgment in favor of the plaintiffs against Lewis O. Wilson and others, on the 5th of August, 1858, and the issuing and delivery of an execution therepn to the original defendant (the intestate), then sheriff, etc., on the same day. This was not admitted by the answer.

The complaint further and fourthly averred, that, withm sixty days after the receipt of the said execution, the defendant, as sheriff, by virtue thereof, levied on personal property of Wilson, one of the judgment debtors, which he had theretofore attached and collected for the plaintiffs $8,753.36, with interest from the date of the judgment, besides his fees and poundage.

The answer admits that the defendant received a paper purporting to be an execution based upon the alleged judgment, and that he collected thereon the amowit as mentioned m the fourth subdivision of the complaint.

This is no denial that he received the execution as alleged. An admission that he received what purported to be an execution is consistent with the' allegation in the complaint, that there was delivered to him, on the day alleged, an execution on the alleged judgment. When, therefore, the plaintiffs, on the trial, produced the judgment record, proved a recovery, as alleged in the complaint, the plaintiffs, by the pleadings and such evidence, had established, that they did recover a judgment for $8,753.36 ‘ against Wilson and others, on the 5th of August, 1858, and, on that day, issued and delivered to the defendant an execution thereon, and that, within sixty days thereafter, the defendant levied on the personal property of one of the .debtors, Wilson, and collected on the execution $8,753.36, with interest from August 5, 1868, besides his fees. Quite unnecessarily, I think, the plaintiffs went further, and produced and put in evidence the execution itself, indorsed, “Beceived August 5, 1858,” and with a receipt or certificate also thereon, indorsed, “ Beceived on the within execution $8,753,36, as within I am commanded. J. 0. Willet, late sheriff.” True, this certificate says nothing about interest, but this was not inconsistent with the admission in the answer, and it may import a collection so soon after the receipt of the execution that interest had not accrued to any material amount, or the terms “ as within I am commanded ” may import that he has collected that sum, with the interest, fees and poundage, as required for the satisfaction of the judgment which he was commanded to satisfy.

At all events, the answer and proofs are ample to charge the defendant with such duty as resulted from the receipt of an execution on the 5th day of August, 1858, and the collection of the amount with interest.

That duty plainly was forthwith to pay over to the plaintiffs or their attorney the amount; or, if the circumstances of the case warranted him in so doing (as to which the pleadings raise no question), to pay the money into court for the plaintiffs, and in satisfaction of their judgment.

If this duty was neglected, he was liable to the plaintiffs for damages, which would be the interest on the money and any necessary costs of compelling such payment.

The defendant was, therefore, put to showing a sufficient legal excuse for not paying over the money. He was, as above stated, concluded by his admissions, and could not claim that he had not collected the amount of the judgment on the execution, and out of the property of the judgment debtor. And this renders it wholly unnecessary to consider the special transaction between the defendant’s deputy and the assignee of the judgment debtors. If, in truth, the defendant had not'reeeived the money as payment of the execution debt, but the deputy had merely received a check as security or by way of indemnity, the answer should have denied that he had collected the money on the execution. In such case, and had the proofs clearly shown that the money was not collected, or that the sheriff never received it upon terms that made it his duty to apply it on the execution, or that he did not receive it upon terms which made it his right or duty to apply it on the execution until the pending motions were disposed of, a very different question would have arisen. The plaintiffs’ complaint would then have been (if they complained at all), that he did not- collect the money and satisfy the judgment, or that he did not use due diligence therein.

What, then, is the supposed legal excuse or justification of the defendant’s delay and retention of the money from the 5th day of August, 1858, to November 29, 1859 ?

■ 1. The pendency of motions to discharge the attachments against the property of the judgment debtor, and

2. The stay of the defendant’s proceedings pending those motions, or some of them.

Obviously, the mere pendency of motions to discharge an attachment against the property of a judgment debtor has no effect upon the duty of the sheriff to levy and collect the execution issued on the recovery of judgment in the action. Whether the attachment was properly issued or not, it was the duty of the sheriff to levy the execution, and collect it if possible, and, even if it proved that the attachment was erroneously or improvidently issued, and it was for that reason discharged, nevertheless, if the execution, when issued, was collected out of the property of the debtor, it was the duty of the sheriff to pay over the money. The pendency of a motion to discharge the attachment was a matter wholly immaterial to any question affecting the duty of the sheriff to collect the execution and satisfy the judgment. On the other hand, if the property attached, and thus kept within reach of the execution, was not the property of the judgment debtor, or was claimed by third persons, or for any reason ought not to be subjected to levy, the sheriff might be justified in returning the execution nulla bona.

Or, if, pending the motion to dissolve the attachments, the court had seen fit to stay the proceedings, or retain the money in the hands of the sheriff after he had collected the amount out of the property attached, the sheriff could not have been required to pay interest thereon, as damages for not paying over or otherwise.

No doubt, where the sheriff has first levied an attachment, and thereby obtained the custody of property or money alleged to belong to the debtor, and judgment is thereafter recovered and execution issued, it would be a protection to the sheriff, so far as the attached property alone furnished him the means of satisfying the execution, that the property was neither liable to attachment nor levy on the execution. And, in a case of doubt, the court has full power to stay the proceedings of the plaintiff pending any motion oi" other proper inquiry.

Here, there was no stay of proceedings from the recovery of judgment until the 25th of June, 1859, and then only from the 25th of June until the 9th of November, 1859.

The charge of the judge at the trial appears to be in conformity- with these views. He instructed the jury that the defendant was chargeable to the extent of interest from the date of the judgment, from which date the sheriff had (or certainly ought to have) collected the interest, until the time when he paid the amount of the principal to the plaintiffs’ attorneys on account of the execution, deducting, however, from such period, the time during which “ the defendant was legally stayed from paying over the money, viz., from June 26th to November 9th, 1859.”.

This was quite as favorable to the defendant as he could legally claim. It overlooked the fact, that, if he had paid over the money as he should have done when he collected it, the plaintiffs would have had the use of the money during this interval of stay, and that there was plausibility, at least, in the claim, that the defendant, by his neglect of duty, had deprived the plaintiffs thereof, and, by the delay, had subjected it to the operation of such an order.

There was, therefore, no error in the principles governing the trial of the action in respect to the EabiEty of the defendant.

But there is an exception to the charge of the judge in regard to the amount which the plaintiffs were entitled to recover, which seems to me well taken.

The defendant proved, and it is so expressly conceded in the case, that, in pursuance of an order requiring him so to do, he had, since the return of the execution, paid to the plaintiffs ninety dollars, for interest received by the sheriff on the money collected, and also paid the plaintiffs interest on such ninety doEars from the 29th of November, when the execution was returned.

Now, the sheriff was entitled to be credited with this payment, and yet the judge instructed the jury peremptorily, that the plaintiff was entitled to recover interest on the judgment debt, $8,753.36, from the rendition of the judgment, 5th of August, 1858, to the return of the execution, November 29th, 1859, deducting from such period the time when payment of the money was stayed, i. e., from June 26th to November 9th, 1859, and interest upon such interest from the said 29th of November to the date of the verdict, which was November 26th, 1861.

This was error. The plaintiffs had received from the sheriff ninety dollars, and interest thereon for interest on the judgment debt, on proof that the sheriff had himself collected such interest. They were not'entitled to recover the same interest again, as damages for the delay or neglect of the sheriff to pay over the principal debt and interest thereon when it should have been paid; yet, such was the effect of this peremptory instruction.

A correct computation, according to the rule prescribed in the charge, making allowance for this error, shows that the sum which the jury were instructed to find exceeded the true amount; and, if the respondent sees fit to abate from his recovery, and so avoid the delay and expense of a new trial, it is just, that the whole error should be rectified.

Thus, the period for which interest was to be allowed was from August 5th, 1858, to November 29th, 1859, one year, three months and twenty-four days, less the period of the stay of proceedings, from June 26th to November 9th, 1859, four months and fourteen days, viz., eleven months and ten days.

Interest for that period on $8,753.36, is,.......... $578 69

Crediting thereon the sum collected,............. 90 00

$488 69

And allowing interest on the balance from November 29th, 1859, to the time of the verdict, November 26th, 1861,........................ 68 13

The amount is,............................... $556 82

TJpon filing their consent to reduce the verdict to that sum, and abate from the judgment accordingly, the respondents should have judgment of affirmance for the reduced amount without costs on this appeal.

If no such consent be filed, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Affirmed, with modification by striking out the ninety dollars already paid, according to opinions in the case.  