Fisher v. Pond — 1 Hill & Den. 672

Majority

p. 672

Fisher vs. Pond, late sheriff, &c.

Headnote

Where a motion to strike out a plea as false, raises a question of law rather than of- fact, it will be denied.

Accordingly, in case against a sheriff for neglect to return an execution, it appearing that the execution was returnable more than three years before suit commenced ; held, that a plea of not guilty within three years, could not be struck out as false, on an affidavit proving the neglect to return it

Quere, whether the statute iof limitations commences running, in such case, immediately after the return day of the execution?

Semble, a plea of not guilty within three years, instead of actio non áccretit, &c., is bad.

' Action on the case against the defendant for not returning a_/&./«.. delivered to him in favor of the plaintiffs, alleging that the defendant, before the return day, levied on sufficient goods, to satisfy the execution, but that he had not paid the money or returned the writ. The defendant pleaded, 1st, not guilty, and 2d, that he was not guilty at any time, within three years next. before the commencement of the suit.

H. A. Foster, for the plaintiffs,

on affidavits, stating that the execution was not .returned, moved to strike out the second plea as false. It did not appear when the execution was returnable, though it was assumed by the counsel'on both sides that it was more than three years before this, suit was, commenced.

M. T. Reynolds, for the defendant.

Whether the plea is false or-not, is more a question of law, than it is one of fact. It depends on the inquiry, whether the statute of limitations commenced running immediately after the return day of the execu-, tion; and that is not a matter to be settled in this way.

The plea may be bad because it says, not guilty within, three years, instead of alleging that the action did not ac-.

p. 673

crue within that time. (2 R. S. 296, § 22. Dyster v. Battye, 3 B. & Ald. 438.) But that question is not now before us, for this is neither a demurrer, nor a motion to strike out the plea as frivolous.

Motion denied.