majority">Woodruff, J.

—The averments that the plaintiff recovered a judgment in an action against the defendant therein, which action was brought to recover the amount fraudulently contracted, show a case in which, by the express terms of sections 179 and 288 of the Code of Procedure, the plaintiff had the right to have an execution against the person of the defendant in the judgment. The court had jurisdiction of such an action, and power to issue such an execution.

The further averment that an execution was duly issued, is, as against the sheriff, all that is necessary. If it was necessary to the regularity of the execution, that a previous order of arrest should have been obtained (which is not to be taken as concluded), the execution which was issued would not be void, though issued without such an order.

The sheriff, who has received such an execution and arrested the defendant, cannot require the plaintiff to allege affirmatively every step in the progress of the cause upon which the regularity of the proceedings depends. He can no more require the plaintiff to enter into the details of the defendant’s fraud, than he can refuse to execute an order of arrest, and require the plaintiff to allege that the justice approved the sureties given, on granting the order of arrest, or any facts not essential to jurisdiction, but tending to regularity merely.

So when the plaintiff avers that the execution was duly issued, he states enough to put the sheriff to his defence, if he do not obey the writ.

In regard to the gravamen of this action, the averment that the defendant (the sheriff) did not deliver the debtor held under the execution to his successor in office, shows a clear and explicit violation of the statute, and breach of the duty which the defendant owed to the plaintiff. For this, the defendant is prima facie liable.

This is enough to put him to his defence. He is, in every aspect of the case (this averment being admitted, and no excuse or avoidance of liability being set up), liable to nominal damages at least.

If in truth the defendant, by delivery of the jail, and the execution of an instrument reciting the property, process, and prisoners delivered, complied with the statute, that will be a subject of proof on denial of the plaintiff’s averment.

*103If the prisoner remained in custody under such circumstances that the new sheriff had a right to hold him and did hold him, or if the new sheriff did, notwithstanding the neglect of the defendant to deliver him, take the prisoner into his possession under section (73) 94 of the statute, in such wise that he had a right to detain him, and does detain him in custody, this may be available in mitigation of damages, or perhaps to show that no damages have been sustained; but as the case stands in the complaint, a cause of action is shown to which the defendant is bound to answer, or he is, I think, liable.

This I think the necessary result of the provisions of the statute (2 Rev. Stat., 438, 9, §§ (67-73) 88-94); and the inevitable inference from the opinion of the court in Hinds a. Doubleday (21 Wend., 225).

The demurrer must be overruled, with costs, with leave to the defendant to withdraw his demurrer, and answer within twenty days, on payment of the costs of the demurrer and proceedings thereon.

Ordered accordingly.

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