Wilcox v. Fitch , 20 Johns. 472 ( 1823 )

Woodworth, J.

delivered the opinion of the Court.

The objections against the plaintiff’s recovery, are, that he was not a creditor when the bond was given, and that the statute of limitations is a bar. As to the first, it appears, that previous to the execution of the bond, the plaintiff had commenced an action of ejectment against Ebenezer which was pending on the 10th of November, 1817, and judgment was afterwards obtained against the casual ejector; a judgment was also recovered for the mesne profits ; an execution was issued thereon, and returned nulla bona. The case of Jackson v. Myers (18 Johns. Rep. 425.) disposes of this objection; it was there held, that a conveyance made with intent to defeat a recovery for damages, in an action pending for a tort, and before trial and judgment, was fraudulent and void, within the statute against frauds.

The words of the statute are, cc to defraud creditors and others of their just and lawful actions, damages, and demands.” The plaintiff in the ejectment cause was protected by the statute, as fully if he had been a creditor. He claimed the recovery of possession, and damages for the mesne profits ; and the result shows he had a just and lawful action.

The fourth section of the statute of frauds, gives one moiety of the penalty to the people, and the other moiety to the party aggrieved ; there is no limitation in this section, as to bringing the action. The suit was commenced in August, 1820, more than two, but less than three years after the execution of the bond. The sixth section of the act for the limitation of actions, declares, that all actions for any forfeiture, upon any penal statute, where the forfeiture is limited to the people of the state only, shall be brought within two years ; that when the penalty is given to any person who shall prosecute for the same, or to the people, and to any other who shall prosecute, the action shall be brought by the person who may lawfully pursue for the same, within one year ; and in default of such pursuit, the same shall be brought for the people at any time within two years after that year ended; and that where the benefit of the forfeiture is given to the party aggrieved, the action shall be sued within three years.

Neither of these limitations apply to the case under consideration, for here the penalty is limited, and given to the jparty aggrieved and the people, in equal portions; no other person is entitled to sue and recover.

The consequence is, that this case not being within any of the limitations in the statute, the suit is not barred by length of time; since by the common law there was no stated or fixed time as to the bringing of actions. (The People v. Gilbert, 18 Johns. Rep. 228.)

We are of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff.