The voice of freedom. [volume] (Montpelier, Vt.) 1839-1848, 1847-02-25

- .--.-..------ss1s
the INJURY which he sustained from them could NOT
nave been recovered in the English action for Dae.os
pros and therefore cannot be thought to have been
comprehended in the damages which the plointifyro
covered in his action of ejectnent If so. then tbo
record OIL MS former recovery in ejectment was no
bar to the plaintiffs present action. judgment of
the County Court reversed.
Graves & al.
Weeks
The opinion Of the Court was delivered bv Hall
j. This is an action on book in which a INDIGNANT
was rendered by the County Court for the PLAINTIFF
and is brought here upon exceptions by the defend
ant The account accrued in 1882 the present suit
was not commenced until 1S44-both parties resided
IN Granville in the State of New York when the ac
count accrued, and they both continued to reside
there at the commencement of the suit. The ques-
ton Mt issue is whether the statute of limitations Of
I'9| Is applicable to case like the present. If this
were an open question, the construction contended
Tor by the defendant, might perhaps with propriety
be adoped-but the doctrine that these statutes of
limitation do not extend TO persons residing out of
the State, has been too long held in this and other
states to be now disturbed and though the rule NAV
and undoubtedly does operate harshly and unjustly
in the present case this is matter for the consider
alton Of the Legislature and not for this Court who
are bound to lay down the law as they find it. The
result is, the judgment Of the County Court is af-
fmed
Winchell,
Pond Pom
The opinion of the Court was delivered bv
DAVIS }. This was al action commenced before
a Justice of the Peace, and brought to the County
Court by appeal. The defendant plead in abatement
before the Justice that the constable who served
the writ made it," and motion to dismiss on the
same account was made in the County Court, ard
that Court dismissed it. To this decision excep-
tons are taken, and the only question before US is
whether the fact that the constable who served the
writ made it, is a sufficient ground for abatement or
dismissal. In support Of this position the &c sec. of
the II Chap. of the Rev. Statutes is relied on this
section is express as to Sheriff. and their deputies
out constables are not there named, and the ques-
ion is whether the provision is to be extended so as
10 include them. There is reason for this proh-
oition which does not extend to constabes as we'll
as Sheriffs; they both being executive officers sub
ect to the same liabilities and penalties and having
the same powers; regard the word sheriff as used
in this section of the statute as nomen collectiru,
applicable to the whole class. Were penalty an
nexed to the act, might be disposed to give the
statute more limited construction, in accordance
with the general rule that penal statutes are 10 be
construed strictly. We do not regard the circum-
stance that the constables particularly named
in tire old statute and not in this as of any particular
mportance they might have been omitted from in
advertenceor from the rcvsors thinking it unneces-
sary to specify all who would be included under
class The object of the statute evidently includes
constables and all executive officers Judgment of
the County Court affirmed BENNETT j. dissenting.
Concluded Rert treek..