
    Luigi Gallarati v. John Orser, Sheriff.
    1. When an order is duly made for the arrest of a defendant, in the case prescribed by subdivision three of section 179, of the Code; (a replevin suit) and the Sheriff arrests him under such order, and allows him to go at large, on executing the proper bond, with sureties who fail to justify on being excepted to; and the plaintiff, in such action, recovers judgment for the value of the property, and damages for the detention thereof, with costs; he may maintain an action against such Sheriff, to recover the amount of said judgment, after an execution against the property of such defendant has been issued on said judgment and returned unsatisfied.
    2. It is not essential to the right to maintain such an action, that an execution against the body of such defendant has been issued and returned unsatisfied, nor that a w;rit de retorno habendo has been issued and returned unsatisfied.
    3. Such judgment, although it is not in the alternative form prescribed by section 277 of the Code, is not void, but is valid until reversed or amended.
    4. The statute (Code, § 201,) which provides that, “if, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the Sheriff shall himself be liable as bail;” means that the liability of a Sheriff arresting a defendant, where bail does not justify, is the same as that of the bail in that particular case would have been, if they had justified on being excepted to.
    5. When such bail, by the terms of their undertaking, become guarantors of the payment of any judgment that may be recovered, the Sheriff is made guarantor if he discharges the defendant on taking bail, who fail to justify.
    (Before Bosworth, Ch. J., and Hoffman, J.)
    Heard, January 10;
    decided, January 29, 1859.
    This is a motion by the .plaintiff for judgment on a verdict in his favor, taken subject to the opinion of the Court at General Term, on the questions of law arising at the trial.
    In July, 1855, Delachwpelh commenced an action in this Court against Amos B. Thompson, to recover the possession of personal property. The necessary papers, to entitle him to have the property taken and delivered to him, were placed in the hands of he defendant, to be executed, he being then Sheriff of the city and county of New York.
    Not being able to find the property, an order was obtained in that action, on the 28th óf July, 1855, under subdivision three, of section 179, of the Code, requiring Thompson to be arrested, and held to bail in the sum of $800. The defendant, as such Sheriff, arrested Thompson by virtue of said order, and discharged him from custody, on his executing', with two sureties, an'undertaking in the terms prescribed by section 211, of the Code. Such sureties were excepted to, but never justified. Thompson appeared by attorney in that action, but did not put in an answer.
    Delachapelle recovered judgment in that action on the 24th of January, 1856, which judgment recites, that a Sheriff’s jury had assessed the plaintiff’s damages “ at the sum of four hundred dollars, for the value of the property claimed by the plaintiff, and one hundred and fifty dollars for the detention thereof,” and adjudges, “ that Alfred Delachapelle, the plaintiff, recover of Amos R. Thompson, the defendant, the sum of $550, the amount claimed, with $33.87 costs and disbursements, amounting, in the whole, to $583.87."
    An execution, against the property of Thompson, and conforming, in form, to the judgment, was issued on the judgment to the Sheriff, (James C. Willett being then Sheriff of the city and county of New York,) who returned it, and upon it, “ no personal or real property.”
    Delachapelle, on the 26th of January, 1856, assigned to the present plaintiff “the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon.”
    This action is brought, to recover of the defendant, as such Sheriff, by reason of the premises, the amount of such judgment. It was tried on the 15th of March, 1858, before Mr. Justice Boswoeth, and a jury.
    On the trial, the facts above were proved, and when the plaintiff rested, the defendant moved for a dismissal of the complaint, on the grounds: “ 1st. That the plaintiff had failed to show any right to recover any judgment against the defendant upon his alleged liability as bail. 2d. That no judgment, authorized by law, had been recovered in the case of Delachapelle v. Thompson. 3d. That there had been no judgment for a delivery of the property or any part thereof. 4th. That no execution, in the form prescribed by law, for a delivery of the property, had been issued or returned. The Court denied the motion. The defendant, then and there, duly excepted to the said ruling and decision- of the Court.” The defendant then gave in - evidence an order made by Chief Justice Oaklet, dated October 2, 1855, (in the suit of Delachapelle v. Thompson,) obtained by Thompson, requiring Delachapelle to show cause on the 6th, why Thompson should not be allowed to serve an answer in that action, and also to give notice of the justification of sureties therein, and for other relief, and staying the proceedings on the part of the plaintiff and of the Sheriff, in the meantime, and until the decision of the Court thereon. He, also, proved that the hearing on said order, to show cause, was adjourned, by “consent,” to the -10th, and then until the' 17th, and then until the 23d, and then until the 24th, on which day an order was made by a Judge of the Court, allowing “ Thompson five days to serve his-answer and notice of justification, on payment- of five dollars costs of motion.”
    The Court, against the objection, and an exception thereto by the defendant, allowed the plaintiff to give evidence tending to prove that Bensil, the Deputy Sheriff who arrested Thompson, by virtue of the order holding him to bail, consented to such adjournments before they were made, and that after the expiration of the five days named in the order of the 24th of October, 1855, Bensil was 'requested to re-arrest Thompson, because his bail had not justified. Bensil was examined, and denied that he was requested to re-arrest Thompson, or that he consented to such adjournments.
    When the evidence was closed, the jury, under the direction of the Court, (as the case states,) found a verdict for the plaintiff for the sum of $666.47, “ the amount of the judgment, being for $583.87; interest $80.60, subject to the opinion of the Court at' General Term, -with power to dismiss the complaint, or the Court at General Term to give such judgment, and- for such amount as-the Court may be advised. Case to be then made up as if such decision had been made' at ■ the trial term, and such exceptions then taken 'thereto, as either party may be advised to take, and shall within ten days after notice of decision, be served on the opposite party—both parties agreeing to this disposition of the case." •
    Some further facts, which need not be here repeated, are stated in the opinion- of the Court.
    
      
      F. H. B. Bryan, for plaintiff, in moving for judgment on the verdict, made and argued the following points:
    1. The undertaking prescribed by section 211 must be strictly complied with. The execution of the undertaking fixes the character of the parties as bail. (7 How. Pr. R., 214.) The sureties on such undertaking cannot exonerate themselves by surrendering the defendant. (Vide § 188, subd. 2.)
    § 201. Fixes the liability of the Sheriff, if among other things bail be not justified. He can only exonerate himself by the giving and justification of bail as provided by sections 193, 194, 195, and 196.
    The undertaking exacted by section 211, renders the sureties responsible for the return of the property, if the return be adjudged, and for the payment of such sums of money as may for any cause whatever, be recovered against the defendant.
    The condition is broad. The Sheriff became liable to perform the condition, and to satisfy the judgment recovered against the defendant Thompson.
    H. Judgment was recovered against Thompson, January 24, 1856, for the sum of $583.87.
    § 261 of the Code, enacts that when the property has not been delivered to the plaintiff, the jury shall assess the value of the property, &c., and the damages, if claimed in the complaint. *
    The verdict of the jury in this case is proper. It is a general verdict. It assesses the value of the property at $400. The damages of detention at $150. (Archer v. Boudinot, 1 Code R., N. S., 372; Commercial Bank v. White, 3 How., 292.)
    It was unnecessary for the verdict to find that the plaintiff was entitled to a return of the property. There was no answer. The facts alleged in the sworn complaint are admitted.
    The omission to find the plaintiff entitled to a return of the property, is, at best, a mere irregularity, of which the defendant in the action could alone avail himself. It is strictly a question between the plaintiff and the defendant in the action.
    It is not availing to the defendant here who is not a party in interest. (7 How., 449, 457; 1 Cow., R., 309; 4 id., 158; 8 id., 192.)
    As between the plaintiff and defendant, this was an amendable defect. (7 Cow., 29.)
    
      It is an error or defect not affecting the substantial rights of parties. It will not affect the judgment. (§ 176, Code.)
    It is strictly technical. (4 Comst., 276.)
    III. The execution followed the judgment. The form of the execution prescribed by subdivision 4, section 289 is merely directory.
    The omission of a direction in the execution to take the property could not injure the Sheriff. He had already returned that the property could not be found.-
    In any event, this is a mere irregularity of which the Sheriff cannot avail himself. The execution would be good' until set aside. The Sheriff is neither party nor privy to it, and cannot make the objection. It cannot be examined in a collateral action. (Jones v. Cook, 1 Cow., 309; Bissel v. Kipp, 5 Johns., 100.)
    But it is contended that the prevailing party has a right to elect whether he will take the property or the value as assessed. In the majority of cases, to force the party to take back the property, which might be materially deteriorated, would be a grievance.
    IV. The adjournments of the order to show cause could not in anywise increase the liability of the Sheriff, or change his position on an undertaking given under section 211 of the Code.
    The complaint avers, that notice to the Sheriff of refusal to accept the sureties was served August 8, 1856. This fact is not denied in the answer.
    The order to show cause on which the adjournments were made, is dated October 2, 1856. The Sheriff, before the order was granted, was fixed as bail. Neither the order nor the adjournments could increase his liability.
    The Sheriff could only have exonerated himself by putting in and justifying bail, on the undertaking prescribed by section 211 of the Code. Section 201 provides for his discharge from liability pursuant to sections 193, 194, 195 and 196.
    The current of authorities as to the discharge of bail by indulgence of the principal, only extends to cases where the situation of the bail is materially changed, or his risk increased. (10 Johns. 505; id., 587; 6 Wend., 244, 245. Gr. Pr., 2d. ed., 443.)
    If the judgment or the execution were in any wise irregular, the Sheriff could alone have availed' himself of such irregularity, by applying to set aside the judgment against the principal, as well as the proceedings against himself. (4 East R., 308.)
    He cannot in this action set up the irregularity as a defense.
    
      A. J. Vanderpoel for the defendants.
    I. The complaint does not contain facts entitling the plaintiff to maintain an action on the Sheriff’s liability as bail.
    1. It is not alleged that an execution had been issued against the person of Thompson.
    This defect is not supplied by the evidence. Thompson has always been within the bailiwick of the Sheriff, and could have been arrested, at any time, under a proper execution.
    As to the sufficiency of the pleadings under the Code. (McKyring v. Bull, 2 Smith, 297.)
    2. The liability of the Sheriff is not fixed, and an action cannot be maintained against him until he is unable to, and fails to, secure the person of the debtor on a proper execution. (Pearsall v. Lawrence, 2 Johns., 514; Shiland v. Cory, 2 Wend., 246.)
    3. The order, in all cases, commands the Sheriff to arrest the defendant, and hold him to bail in the specified sum. The undertaking of the bail varies according to the nature of the action; but if the defendant does not give the bail, then the Sheriff must produce the body when execution issues. To this end, the law has furnished to the Sheriff the means of control of the person.
    
    4. The two hundred and first section of the Code, declaring the Sheriff’s liability as bail, was not intended to render him liable according to the condition prescribed in section two hundred and eleven, so long as he can produce the body when required. It provides that he shall be liable, in the same manner where “ bail be not given ” as where bail fail to justify. The plaintiff, to recover, must establish the proposition, that when the Sheriff obeys the order, by arresting the party, and retains him in custody pending the action, the plaintiff can, while the defendant is thus imprisoned, sue the Sheriff, and recover fi'om him the delivery of the property, or its value, and all such sums as may be recovered against the defendant.
    5. The last clause of section two hundred and one declares that the Sheriff may relieve himself from liability, by giving and justifying bail, for the custody of the person of the defendant, at any time before process against the person is issued to enforce the judgment, establishing most conclusively (if this section is at all applicable to the action for claim and delivery) that the Sheriff’s liability depends upon his being able to produce the person of the defendant on execution.
    II. The action cannot be maintained against the defendant, on his alleged liability as bail, until a judgment for a return of the property has been recovered in the suit of Delachapelle v. Thompson, The bail are only liable in the case of a judgment for return; this is their undertaking; they are sureties ; nothing else can, so to speak, liquidate their liability. (Code, § 211.) The judgment for the value of the property was wholly unauthorized by the Code. The plaintiff can only take judgment for a return of the property, ■and damages for detention, where a return is awarded. (Code, § 277; Dwight v. Enos, 5 Seld., 475; Fitzhugh v. Wiman, id., 659; vide, Slack v. Heath, 1 Abb., 331.)
    IH. But if there was a judgment for return, the plaintiff must go further, and show that he has issued an execution in conformity" with such judgment, before he can charge bail. It was óf no avail that the plaintiff issued an execution against the property of the defendant; under the first subdivision of section two hundred and eighty-nine, such an execution was void. The kind and form of execution, in the action for claim and delivery, is prescribed in section two hundred and eighty-six, and subdivision four of section two hundred and eighty-nine. The liability of the bail could not be fixed until the issuing and return of the proper execution; as in similar cases before the Code, the condition of the undertaking was not broken until the return of the 'execution.
    1. In most cases the property will be obtained whenever judgment therefor is recovered, and an execution issued which will •authorize the Sheriff to take it.
    2. Under the former practice, it was necessary that a ca. sa. be ■sued out against the principal, and actually returned non est inventus, and filed, before - the plaintiff could proceed to charge the bail. (Pearsall v. Lawrence, 3 Johns., 514; Shiland v. Cory, 2 Wend., 246; Rathbone v. Blatchford, 1 Caines, 588, 592; Cowden v. Pease, 10 Wend., 333, 335.)
    
      3. The R S. required the plaintiff in replevin to give a bond at the commencement of the action, with a condition substantially like the undertaking of bail in claim and delivery under the Code. In an action upon such a bond, it was necessary to prove the issuing and return of a writ de retorno hábendo. (Cowden v. Pease, 10 Wend., 333; Cowden v. Stanton, 12 id., 120; Gibbs v. Bull, 18 Johns., 435, 440.)
    IY. If the Sheriff became liable as bail, he is entitled to all the rights and protection of a surety, and, therefore, was discharged by the delays which were consented to by the plaintiff. (Heck v. Heath, 1 Abb., 331.)
    Y. The alleged cause of action against the Sheriff did not pass to the plaintiff under the assignment of the judgment. (Commonwealth v. Furqua, 3 Litt., 41; Jones v. Commonwealth, 2 id., 357.)
    The defendant is entitled to judgment.
   By the Goübt—Boswobth, Ch. J.

The judgment in the action of Belachapelle v. Thompson, should have been in form; that the plaintiff recover the possession of the property; or the value thereof as assessed, in cuse a delivery cannot be had; and the damages assessed for the detention thereof' and the costs as adjusted. (Fitzhugh v. Wiman, 5 Seld., 559-562; Dwight v. Enos, id., 475.)

But though not entered in the alternative form, it is not void; it is erroneous merely.

It was entered on the 24th of January, 1856. This action was commenced on the 28th of April, 1856, and the complaint informed the defendant, in what form the judgment had been entered. His answer was verified on the 11th of August, 1856, and it alleges, that the judgment mentioned in said complaint, as having been recovered in said action, is wholly void and of no effect.”

The judgment could not be set aside on motion for irregularity, unless such motion was made within a year after judgment rendered. (2 R. S., 359, § 2; Code, §§ 174, 173.)

More than a year had elapsed between the entry of such judgment and the trial of the present action. The right of the defendant, Thompson, to appeal had elapsed, if notice of the judgment was served at or near the time it was rendered. Neither Thompson nor the Sheriff could have moved, at the time the trial of this action was commenced, (more than a year having elapsed since said judgment was rendered,) to set it aside, as irregular, on motion. It is clearly regular and valid, so far as it relates to the damages assessed for the detention of the property, and the costs of the action. It was erroneous in form, in not adjudging a return of the property, and a recovery of its value only in case a delivery of the property could not be had.

The execution issued, followed and conformed to the judgment. That, therefore, was regular, assuming the judgment to be valid, until reversed or modified. The Sheriff having discharged Thompson from custody, on taking bail, who failed to justify, the question is, what is the nature and extent of the Sheriff’s liability ?

The concluding sentences of section 187 prescribe the terms of the undertaking which it was the duty of the Sheriff to exact, and section 201, bis liability, in case he takes bail who do not justify.

By declaring that “ the Sheriff shall himself be liable as bail,” section 201 must mean, that if the order to arrest and hold to bail makes it his duty to take such bail as is prescribed, when the arrest is made under subdivision 3 of section 179, his liability will be the same as that of such bail would be. His liability is thesame as that of such hail would be (if they had justified), and if a judgment, in such form, had been subsequently entered, as has been actually entered in that cause. Such bail cannot exonerate themselves, by a surrender of their principal. (§ 188, and §§ 187 and 211.)

In cases of an arrest of a defendant, by a Sheriff, by virtue of an order granted under the other subdivisions of section 179 of the Code, the liability of the Sheriff, in case he allo.ws a defendant to go at large, on his giving an undertaking, with sureties, who fail to justify, is the same, as that of such sureties would have been had they justified.

The undertaking, which it was the duty of the Sheriff to take, in the case before us, and the one which he did in fact take, is to the effect, that the persons, executing it “ become bound to the plaintiff in the sum of $800, for the delivery of said property to the plaintiff if such delivery shall be adjudged, and for the payment to him of such sum or sums of money as may, for any cause, be recovered against the defendant in this action.”

The plaintiff in that action, recovered against the defendant therein, a judgment for the sum of $666.47, which is wholy unpaid.

Chapter 2 of title 7 of the Code does not declare when, or on what contingencies, an action may be brought on an undertaking, given under that chapter. (§§ 206-217, inclusive.)

Section 471 of the Code, declares that “the second part of this act” (the Code), “ shall not affect” “ any existing statutory provisions relating to actions, not inconsistent with this act, and in substance applicable to the actions hereby provided."

By 2 Revised Statutes, 523, section 7, subdivision 2, the Sheriff was required to take from a plaintiff in the action of replevin (for which a “ claim and delivery of personal property,” chap. 2, title 7, of the Code is a substitute,) a bond with a condition, in terms, substantially like that of the undertaking required, when a defendant is arrested and held to bail under subdivision 3 of section 179 of the Code. (See §§ 187 and 211 of the Code.)

Section 64, of 2 Revised Statutes, 533, (and Cowden v. Pease, 10 Wend., 333, and Cowdin v. Stanton, 12 Wend., 120, decided under it,) are cited, as establishing the proposition, that no action will lie against the sureties to a bond executed under subdivision 2 of section 7 of 2 Revised Statutes, 523, until a writ de retorno habendo, had been issued and returned unsatisfied.

Section 64 of 2 Revised Statutes, section 533, provides that, “ if any writ of return, or other execution, issued in favor of the defendant in the action, shall be returned unsatisfied, in whole or in part, such defendant, or his representatives, may have an action upon the bond executed by the plaintiff and his sureties to recover the value of the property replevied, and the moneys, damages and costs awarded to such defendants, as the case may be, and such bond may be assigned to such defendant, or his representatives, on their request.”

Cowden v. Pease, (10 Wend., 333,) came before the Court, on demurrer, and the Court held, that it was not necessary to aver in the declaration that an execution had been issued, but that such fact must be proved at the trial.

Cowdin v. Stanton, (12 Wend., 120,) came before the Court, on a motion by the defendant for a new trial. Savage, Ch. J., said: “ It has been held, in Cowdin v. Pease, (10 Wend., 333,) in an action on this same bond, that the suit cannot be commenced on the bond until the return of the execution unsatisfied, in whole or in part; but that is matter of proof, and need not be averred in the declaration. No proof of that kind was offered on the trial.” (Id., p. 122.) In that case, no execution, of any kind, had been issued. In that case, it is true, Chief Justice Savage states, that it was admitted by the pleadings, “that the goods and chattels had not been returned, but were converted and disposed of by the Steam Navigation Company,” (the plaintiff in the replevin suit;) “ but it does not necessarily follow that they would not have been surrendered up to the officer upon a writ of retorno habendo. By the decision last cited, and the Revised Statutes, no action lies until such writ shall have been returned unsatisfied, in whole or in part.” (12 Wend., 122.) These observations may be conceded to be accurate, when made of a judgment, which, by its terms, awards a return of the property, and should probably, be understood as having been spoken with reference to a judgment in that form. The declaration in each of those cases, (as reported in the 10th and 12th of Wend., supra,) states that such was the form of the judgment rendered.

But section 64 of 2 Revised Statutes, page 553, (above quoted,) declares that “ if any writ of return, or other execution, issued,” &c., “shall be returned unsatisfied, in whole or in part,” an action may be brought upon the bond. Under the Revised Statutes, a defendant in replevin might, in many cases, waive a return, and take judgment for the value of the property. (2 R. S., 531, §§ 53, 54, 55.) When judgment was taken for the value only, and for damages for the detention of the property, no retorno habendo would issue, but an execution against property would be issued. When that was returned unsatisfied, in whole or in part; by section 64, (2 R. S., 533,) the defendant might bring a suit on the replevin bond given by the plaintiff and his sureties.

In the case before us, the judgment rendered is for the recovery of money only. When a judgment merely requires the payment of money, an execution “against the property of the judgment debtor,” is the appropriate and prescribed form. (Code, §§ 285, 286, and sub. 1 of § 289.) When the judgment requires the delivery of personal property, the execution, among other things, must direct “the officer to deliver the possession of the same,” &c. (Id., §§ 285, 286, and sub. 4 of § 289.)

In the case before us, the judgment requires the payment of money, and nothing else. An execution, in the form prescribed for such a judgment, has been issued and returned wholly unsatisfied. By section 64, (2 R. S., 533,) if that statute is applicable to these proceedings, an action might, thereupon, be brought against the parties executing the undertaking received by the Sheriff, if they had justified. By the terms of that undertaking, they agreed to be liable “ for the payment,” (to Delachapelle,) “ of such sum or sums of money as may, for any cause, be recovered against the defendant in” (that) “action.” In that action, by the judgment rendered in it, he recovered against the defendant therein the sum of $666.47. If that judgment is valid, and if its regularity cannot be impeached or inquired into collaterally, it is evident that such sureties, had they justified, would be liable, in an action against them, for that sum.

The Sheriff being liable as bail, and in the case before us being liable as such bail, the plaintiff, as the assignee of Delachapelle, is entitled to judgment on his verdict, if the judgment rendered is valid, until amended or reversed.

I think it needs no citation of authorities to show that it is not void, and that its regularity cannot be called in question collaterally. (Croghan v. Livingston, 17 N. Y. R., 218, 221-223.)

It was not necessary that an execution against the person of Thompson should have been issued and returned, before the right to bring this action would accrue. That is necessary only when an arrest has been ordered and made under the subdivisions of section 179, other than subdivision 3. In all cases except the one last named, the bail are discharged if the defendant is found and arrested on an execution against his body. He may surrender himself to the Sheriff of the county in which he was arrested, or be surrendered by his bail, in exoneration of their liability. (Code, §§ 188,191.)

But bail for a party arrested under subdivision 3 of section 179, are precluded from discharging their liability, by a surrender of their principal. (§ 188, sub. 2.) They become, by the terms of their undertaking, sureties for the actual payment of any sum that may be recovered against their principal. (§§ 187, 211.) In arrests for other causes, their undertaking is, simply, that their principal shall, at all times, render himself amenable to the process of the Court, during the pendency of the action, and to such as may be issued to enforce the judgment therein.” (§ 287.)

The consents given by the attorney of Delachapelle, that the hearing of the order to show cause, made on the 2d of October, 1855, be adjourned from time to time, from the 6th to the 24th of October, do not affect the Sheriff’s liability. They neither increased nor affected his risk. Had the order made on the 24th of October, 1855, been complied with, and sureties been given,, who justified, the Sheriff would have been relieved from liability.

Whether the deputy did or did not consent to such adjournments, was wholly immaterial. And whether the Sheriff or his deputy could or could not have subsequently arrested Thompson, and omitted to do so, is of no consequence, if the views already expressed are correct.

The assignment executed by Delachepelle to the plaintiff, transferred the cause of action for which this suit is brought. (Bowdoin v. Calman, 6 Duer, 182.)

The plaintiff must have judgment on the verdict. On making up the case, under the stipulation made at the trial, the evidence as to the consent of Bensel to the adjournments of the hearing upon the order to show causé, and as to his having been requested to rearrest Thompson, after the 29th of October, 1855, should be omitted, as it is disregarded by the Court, at General Term, in forming the conclusions above expressed.

Judgment for plaintiff on the verdict.  