McDonald v. Bunn
New York Supreme Court
Case against the defendant, as sheriff of Montgomery county, for a false return to a ji.fa. issued upon a judgment in favor of the plaintiff in this suit, against R C. Davidson, tried at the Montgomery circuit in November, 1843, before Willard, C. Judge. Plea, not guilty. On the trial, the plaintiff gave in evidence an authenticated copy of a paper alleged to be the record of a judgment in this court in his favor, against Davidson.
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Case against the defendant, as sheriff of Montgomery county, for a false return to a ji.fa. issued upon a judgment in favor of the plaintiff in this suit, against R C. Davidson, tried at the Montgomery circuit in November, 1843, before Willard, C. Judge. Plea, not guilty. On the trial, the plaintiff gave in evidence an authenticated copy of a paper alleged to be the record of a judgment in this court in his favor, against Davidson. The placita was of July term, 1839. Memorandum, of the filing of the declaration on the 14th September, 1839, of July term preceding. Then followed the…
1Opinion of the Court
By the Court, Beardsley, J.
In an action against a sheriff for a false return of nulla bona to a writ of fieri facias, the *48plaintiff must show a valid judgment to uphold the process. The judgment constitutes an essential ingredient in the plaintiff’s right of action, and is invariably alleged in the declaration in such cases. (2 Chit. Pl. 7th Amer. ed. 748 ; 2 Stark. Ev. 7th Amer. ed. 1016; 2 Phil. Ev.
The general rule, where a sheriff is sued for any thing done by him in obedience to the command of final process in his hands, certainly is, that he need not set up a judgment in order to justify…
2Cited by6 opinions
- Morris v. . PatchinNew York Court of Appeals · 1862
- Cox v. RossMississippi Supreme Court · 1879
- Inman v. McNeilNew York Supreme Court · 1879
- Forsyth v. CampbellNew York Supreme Court · 1878
- Johnson v. OppenheimThe Superior Court of New York City · 1873
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