Dygert v. Crane
New York Supreme Court
Demurrer to replication. This suit was commenced in October term, 1826. The declaration set.forth the recovery of a judgment by the plaintiff in this court, against D. Sprague and J. C. Dann, for $242,86; that a testatum fieri facias was issued on the same, and delivered to the defendant as sheriff of Herkimer, on 29 th May, 1826, returnable at the succeeding August term; that by an endorsement on the writ, the sheriff was directed to levy $242,86, and his fees; that by…
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Demurrer to replication. This suit was commenced in October term, 1826. The declaration set.forth the recovery of a judgment by the plaintiff in this court, against D. Sprague and J. C. Dann, for $242,86; that a testatum fieri facias was issued on the same, and delivered to the defendant as sheriff of Herkimer, on 29 th May, 1826, returnable at the succeeding August term; that by an endorsement on the writ, the sheriff was directed to levy $242,86, and his fees; that by virtue of the execution, the defendant, as such sheriff seized and took in execution divers goods and chattels of Sprague…
1Opinion of the Court
By the Court,
Sutherland, J.
If the payment of the money received by the sheriff on the execution into the clerk’s office, under the circumstances stated in his second plea, without its acceptance by the plaintiff) is a good defence to the action, then the averment in that plea, that the plaintiff accepted and received the money, was an immaterial averment, and the plaintiff’s replication, taking issue upon it, js bad.
This suit was commenced in October, 1826, and the plea states, that after the commencement of the suit, to wit, on the 9th of February, 1827, the plaintiff caused a rule to be…
2Cited by17 opinions
- Merchants' Bank v. RawlsSupreme Court of Georgia · 1849
- Elliot v. Cronk'sNew York Supreme Court · 1834
- Crane v. DygertNew York Supreme Court · 1830
- Thompson v. Central BankSupreme Court of Georgia · 1851
- Price v. DrewSupreme Court of Florida · 1882
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