[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 197 The plaintiff brought this suit against the defendant for making a false return, as sheriff of the county of Rensselaer, to a writ of execution issued out of the court of common pleas of that county in his favor against the property of H.A. G.R. Benton, to whom it was directed and delivered to be executed. The complaint alleges, that on the twenty-fifth day of June, 1847, the plaintiff recovered in the late court of common pleas of the county of Rensselaer a judgment against H.A. G.R. Benton in debt for $4000, and $32.72 damages and costs, and upon the same day issued and delivered to the defendant then being sheriff of the county, a writ of execution for the collection of $2032.72, with interest from that day, by virtue of which the defendant on the same day levied upon the property of the defendant in the judgment, of sufficient value to satisfy it, but afterwards returned it, certifying that he could not find any property of the defendant to satisfy it; by which means, it is alleged, that the plaintiff was prevented from enforcing the payment or collection of $1542.93 thereof, with interest thereon from the eighth day of September, 1847, and which the plaintiff claimed to recover of the defendant.
The answer of the defendant does not controvert either of these allegations. It alleges that the execution was issued *Page 198 and delivered to the defendant as sheriff, in less than thirty days next after the rendition of the judgment without the authority of law and without the consent of the said H.A. G.R. Benton, or either of them, and was illegally issued: that at the time it was issued there was nothing due from said Benton on said judgment to the plaintiff, and denies that there was then due to the plaintiff on the judgment and execution the sum of $1542.93, claimed by him. It also alleges that the plaintiff had received promissory notes and bills of exchange and demands against third persons to the amount of $1000, which he claimed as a set-off in this action.
The plaintiff in his reply concedes that the execution was issued and delivered to the defendant as sheriff within thirty days after the rendition of the judgment, but insists that it was with the consent of the defendants therein and by authority of law: that at the time thereof there was due to the plaintiff upon the judgment, the sum of $1542.93, and that the plaintiff had not received any promissory notes or bills of exchange as alleged in the answer, which could be set off in this action.
The first question arises upon the decision of the judge on the trial of the cause, that as the defendant had not in his answer denied either allegation contained in the complaint, and a cause of action having been sufficiently alleged in the complaint, the plaintiff was prima facie entitled to recover without giving any evidence of the truth of his allegations — not being controverted by the answer they must, for the purposes of this suit, be taken as true. I think the decision was right. Section 144, of the code of 1848, provides that every material allegation of the complaint not specifically controverted by the answer as prescribed in section 149, shall for the purposes of the action be taken as true. In effect it was so adjudged in Walrod v.Bennett (6 Barbour, 144).
The defence set up by the answer is first, that the execution was issued within thirty days after the rendition of the judgment without the consent of the defendant therein, and without the authority of law; second, that there was nothing due from the defendant at the time of issuing the execution, nor was the *Page 199 sum of $1542.93 then due to the plaintiff as claimed by him; and, third, that the plaintiff had received promissory notes and bills of exchange and demands against third persons to the amount of $1000, which the defendant claimed should be set off against the plaintiff's demand.
As to the first branch of the defence, it appeared by the complaint that the execution was issued within thirty days after the recovery of the judgment. The answer sets up that it was illegally issued because the same was so issued without the consent of the defendant therein. The reply controverts this allegation; it says it was legally issued, with the consent of the defendant therein. The judge decided that the plaintiff was not bound to prove that the defendant in the execution consented to its being issued within the thirty days. In that there was no error, for until set aside, although issued without the defendant's consent, the process was valid, and no one could take advantage of such an irregularity but the defendant in the execution. The judge was clearly right in his decision that the defendant was bound to execute it and could not take advantage of the fact in his defence that it was issued within the thirty days (Jones v. Cook, 1 Cow. 309; Ross v. Luther, 4 Cow. 158; The Ontario Bank v. Hallett, 8 Cow. 192; Kimball v.Munger, 2. Hill, 364; Green v. Burnham, 3 Sand. Ch. 110; Pierce v. Alsop, 3 Barbour Ch. 184; Berry v.Riley, 2 Barb. Sup. C.R. 307; Williams v. Hogeboom, 8Paige, 469; Parmelee v. Hitchcock, 12 Wend. 96; Stone v. Green, 3 Hill, 469; Rider v. Mason, 4 Sand. Ch. 351).
The distinction is between void and voidable process; thelatter is a justification to the officer, until it is set aside by the party. One strong reason why the sheriff shall not take advantage of the error in issuing the process is, that for aught that appears the party does not wish to avail himself of it (Ames v. Webbers, 8 Wendell, 545). But process which isvoid, the officer is under no obligation to execute, and he may in an action brought against him for refusing to execute it, set up its invalidity (Cornell v. Barnes, 7 Hill, 35). *Page 200
I think the judge was right in holding that the defendant could not be permitted in order to reduce damages, to show that the execution directed the collection of a greater sum than was due to the plaintiff. It was for a sum less than the amount of the recovery, and the complaint alleges that the defendant levied on property of the defendant by virtue of it, sufficient in value to satisfy that amount, which fact for the purposes of this suit we have seen is admitted to be true — clearly that sum with the interest must be taken as the measure of damages which the plaintiff sustained by the false return made by the defendant. The exclusion of the evidence offered by the defendant, to show that the execution was issued in violation of a stipulation given by the plaintiff to the defendant in the execution, and that they made an assignment of all their property for the benefit of their creditors before the expiration of thirty days after the judgment was docketed, was right. In the first place, if this execution was issued in violation of a stipulation between the parties to it, it was merely an irregularity of which only the defendant in the execution could take advantage; and besides this branch of defence is not set up in the defendant's answer. I think this judgment should be affirmed.
Judges GARDINER, JOHNSON, EDMONDS and WELLS concurred.
RUGGLES, Ch. J. and WATSON, J., did not hear the argument, and GRIDLEY, J., was absent at the decision.
Judgment affirmed. *Page 201