7 Wend. 352 | N.Y. Sup. Ct. | 1831
By the Court,
These pleas are both bad. The revised statutes prescribe that the plaintiff, in an action in which special bail shall have been put in, shall not be entitled to bring any suit on the recognizance of bail, until he has issued a fi.fa., which shall have been returned unsatisfied in whole or in part, and until a ca. sa. shall have subsequently been returned not found; and the sheriff is required to execute such process, notwithstanding any directions he may receive from the plaintiff or his attorney. 2 R. S. 382, § 31. The next section provides that the defendant may plead, 1. That no fi.fa. and ca. sa. were issued as above directed; or 2. That they were not issued in sufficient time; or 3. That directions were given by the plaintiff or his attorney to prevent the service of the said writs, or either of them; or 4. That any other fraudulent or collusive means were used to prevent such service. The pleas under consideration state gross misconduct of the sheriff, but it is not averred that such misconduct was caused by the plaintiffs or their attorney. The fraudulent and collusive means intended by the legislature must be chargeable upon the plaintiff, otherwise it is no defence. The party has a remedy against the sheriff in a proper action, but the facts stated, form, as pleaded, no defence to the plaintiff’s action.
Judgment for plaintiffs on demurrer, with leave to the defendant to amend, on payment of costs.