Allen v. Mann

Chipman, Ch. J. It will be in vain for the plaintiff to proceed-. It is clear, as well from the declaration as the proof, that there is no foundation for the action. The declaration is wholly insufficient to support a j udgment, should the plaintiff obtain a verdict. From his own shewing it appears that the plaintiff has sustained no injury, unless from his own voluntary act. The taking out of a writ is the commencement of an action, to avoid the statute of limitations, if it be actually taken out, it is sufficient if it be served in time for the next Court, to which it must be made returnable. The statute of offsets has made the day of serving the writ, the commencement of the action, for certain purposes. The statute of limitation has made no such alteration : it remains, therefore, as at common law, and when the defendant received the writ, he had the whole time of service to the next Court (some time in the beginning of February) to [96] make the service. Until that time, from the nature of the thing, the plaintiff could sustain no injury, and could have no cause of com~ plaint against the officer. At the time of bringing this~ action, the 9th day of January,. 1 7'94, the time of service not being then expired, it is apparent there could exist rio right of action in this case. The defendant ought to have demurred. It would be nugatory for the plaintiff to take a verdict, for a judgment in this case could not be supported. Indeed, though the evidence proves the facts alleged in the declaration, it does not prove the defendant to have been guilty of any thing whIch the law can deem an injury. He is in fact charged with nothing upon which to say he is guilty. If the plaintiçf or his agent, has not permitted the writ afterwards to be served, although there was ample time, as it appears, he has lost his debt by I~s own latches, or his eagerness to entrap an officer who had done iibthing amiss. The other Judges concurring, the counsel for plaintiff suffered a verdict to be taken against him.