Read v. Markle

3 Johns. 523

Opinion

Spencer, J.

delivered the opinion of the court. It is expressly stated in the case, that the execution was set aside for irregularity ; if so, this case is not distinguishable from that of Parsons v. Lloyd. (3 Wils. 345.) In that case, the court distinguished between erroneous, and irregular process ; the latter they held to be void and a nullity from the beginning; that, under the first, a party might justify until it be reversed, but not under an irregular process, because it was his own fault that it was irregular and void at first. The execution issued in favour of Smith and Tater, against the plaintiff, being admitted t° be irregular, and, unexplained, is to be considered as void. The plaintiff’s action, therefore, accrued when the goods were first taken ; and the plaintiff, having delayed to bring a suit within six years from the time of the trespass, is undoubtedly barred by the statute. We forbear to consider the other point, because it is unnecessary to the decision of the cause. The defendant is entitled to a new trial, with costs to abide the event of the suit.

New trial granted.