Hall v. Tomlinson

[230] The opinion of the Court was delivered by Williams, J. It is not set forth in the case what wa3 the irregularity in the service and return made by the defendant on the execution therein mentioned, which occasioned this suit. It is agreed however, that the return was dated the day after the execution expired, that on the trial of an action of ejectment brought by Elias Hall the debtor in the execution, against the present plaintiff, the levy was adjudged to be void, and in consequence thereof a recovery was had against her in that action. To determine when the statute of limitation commenced running on the plaintiff’s cause of action, it is only necessary to determine when she could have commenced this suit. The counsel for the plaintiff consider that her cause of action did not accrue, or was not complete until the recovery had against her, in the action of ejectment. This however is incorrect; the defendant neglected his duty when he failed to make a sufficient levy and return on the execution, at that time the cause of action was complete against him. The insufficiency of the levy to pass any title to the plaintiff, and the illegality of the defendant’s proceedings, were fhen as apparent as they now are. She was under no necessity of waiting until the validity of the levy was tried in the action of ejectment, but might commence her suit immediately against the defendant and in that suit have a determination, whether any title passed to her by the levy which the defendant attempted to make. If she preferred to remain in possession and take the chance that the defect might not be discovered until her title was perfected by length of time, she must abide the consequences if the defendant is protected by the statute of limitations. Inasmuch as the neglect of duty in the defendant for which this action is brought occurred more than six years before the commencement of this suit, (the levy having been made or attempted April 1823,) the statute of limitations is a bar to the plaintff’s action, and the instructions of the Court to the jury were correct. The case of Young vs. Dickinson, decided in this County in April, 1823; the case of Read vs. Markle, 3 John. 523; Whitehead vs. Howard, 2 Bro. & Bing, 373; Balley et al vs. Faulkner et al, 3 Barn. & Ald. 288; Short vs. MCarthy, Do. 626. [231] Rice et al vs. Hosmer, 12 Mass. 127: Miller vs. Adams, 16 Do. 456; fully established the law as laid down in this case by the County Court. Doolittle, for plaintiff. Phelps & Bell, for defendant. The judgement of the County Court must therefore be affirmed.