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Fisher v. Pond

2 Hill & Den. 338 Court N.Y. Sup. Ct. English

Delivered by Cowen, J.

Contents

Majority

p. 338
Fisher and others vs. Pond.

Headnote

To a declaration against a sheriff for not levying and for not returning a ft. fa., a plea of not guilty within three years, &c., is bad on special demurrer.
Semble, thát such plea would be held good on general demurrer.
The proper plea in a case of this character would be, that the causes of action did not accrue, &c.
Demurrer to pied. Action on the case against the defendant, late sheriff of Monroe. The first count of the declaration was for not returning, and the second for not levying a fi. fa. The defendant pleaded the general issue, and a special plea of not guilty, ffc. within three years,' Sfc. The plaintiffs demurred specially to the second plea, assigning for cause that the plea should have been actio non accrevit, &c.
A. P. Grant, for the plaintiffs.
G. H. Mumford, for the defendant.

By the Court,

The plea demurred to is founded on 2 R. S. 224, 2d ed. § 22, which provides, that “all actions against sheriffs and coroners upon any liability incurred by them by the doing1 any act in their official capacity, or by the omission of any official duty, except for escapes, shall be brought within three years after the cause of action shall have accrued, and not after that period.”

It may be conceded that the causes of action accrued respectively, on the omission to return the -fi. fa. or to levy, without waiting for the accruing of actual damage to the plaintiffs; and in this view the plea might have been good on general demurrer. But it is demurred to specially for not following the statute in terms, by saying that the causes of action did not accrue, &c. The nature of the objection to the plea is, that it seeks to reach the words of the statute by equivalent terms, or rather, argumenta

p. 339
tively. And in this view, a like plea upon a statute similarly worded was said to be bad in Dyster v. Battye, (3 Barn. Aid. 448, 452.) There, Abbott, Ch. J. said the settled form of pleading had been otherwise. Upon the authority of that case and the reason of the thing, we are of opinion that the plea is formally defective.[1]

Judgment for plaintiffs.

(a) (a) See Fisher v. Pond, ( 1 Hill, 672 .)