People v. Dunning

By the Court,

The only question is, whether the process is void or erroneous. The sheriff supposed it to be void, and that the sureties of the deputy were not responsible to him for the money received' on the execution. This is a mistake. The process was erroneons and not void, and therefore amendable, (4 Cowen, 550;) and the money having been received by the deputy colore officii, his sureties are liable, and the sheriff is responsible to the plaintiff. The party not having applied to set aside the execution, the sheriff cannot avail himself of any defects in it, and must pay the money or stand committed.