Hissong v. Hart

Judgment was recovered November 21, 1873, against the defendant, and an execution against the defendant was issued October 9, 1874, to the sheriff, which by section 290 of the code is returnable in sixty days. The bail surrendered the defendant to the sheriff, January 11, 1875, more than a month after the return day of the execution, and the defendant, on the 15th of said January, gave bail to the sheriff for the limits, and on the 20th of January the sheriff returned the execution “ defendant not found.” January 22, 1875, the plaintiff sued the bail, who now apply for an exoneration.

This case has been decided by the special term on two occasions on substantially the same facts, and has *412been fully examined by two of the learned judges of this court. 1 fully concur in their conclusions, and am in favor of affirming the order, with costs.

The return of the sheriff, “ not found,” authorized the action against the bail; and it was too late to apply for an exoneretur after the bail had become charged (Code § 188). It seems the return of the sheriff can not be questioned in the action against the bail (Cozine v. Walter, 55 N. Y. 304). It, therefore, can not be, in a motion to discharge the bail. The remedy is by action against the sheriff for a false return.

I concur in affirming the order, with costs.