Betts v. Norris

The opinion of a majority of the Court, Shf.plkv J. dissenting, was delivered June 3, 1843, by

Whitman 0. J.

— This action against the defendant is for a nonfeasance as a deputy sheriff, in not attaching sufficient property as ordered on mesne process in favor of the plaintiff, and against John Lane and Jabez Leadbetter, to satisfy the judgment afterwards recovered thereon. The writ was served, in 1829. This action was commenced in June, i 840; and within six years of the rendition of the judgment in that case. The statute of limitations is relied opon in defence. The plaintiff insists, that his right of action against the defendant did not accrue till after the rendition of judgment against Lane and Leadbetter. The defendant contends that it accrued, if ever, at the time of the attachment returned on the writ against them. At the trial, the plaintiff consented to become nonsuit, reserving leave to move to have it taken off, and the action reinstated for trial, in case the Court should be of opinion, that the defence, under the statute of limitations, could not be sustained.

To determine when the right of action accrued, is not without its difficulties. It is very clear that the, particular act of nonfeasance occurred when the writ was returned by the defendant, without having complied with the order of the plaintiff; and the plaintiff’s writ must necessarily so allege it. But it is insisted, though the act of nonfeasance did then take place,, that the injury did not • arise till after the rendition of judgment ; nor until it was ascertained, by a levy, that the property attached was insufficient to satisfy the execution thereon issued. The question would seem to be, was the omission a wrong done to the plaintiff, from which the supposed injury accrued ? or was it an innocent act of the defendant, from which consequential injury alone arose to the plaintiff? If the former, then the act complained of was the subject matter of the grievance; and the statute should begin to run from the time' it took place. If the latter, then it should begin to run only from the time of the happening of the injury. If a man erects a dam on his own land, causing a reflux of a stream, which would overflow his neighbor’s land only in case of a high freshet, the erection of the dam would be an innocent act; and the injury to be complained of would be consequential merely. But if the law gave a right to erect such a dam, and provided no other remedy for a person liable to be injured by it, than, that the builder of it should, in the case of a rise of water, hoist a gate sufficiently high to prevent the reflux of the ...water, to the injury of his neighbor, then the not hoisting of the gate would be the grievance to be complained of.

The case at bar has been supposed to bear a similitude to the case of Roberts v. Read, 16 East, 215, in which it appeared that the defendant, a surveyor of highways, had so excavated adjoining the plaintiff’s wall, that some months after-wards it fell. The cause of action was considered as accruing when the wall fell. It was a special action on the case for consequential damage. Till the wall fell, there was no trespass upon the plaintiff’s rights. It did not appear but that the surveyor had done what he innocently might do. The case was decided upon the same principle, as in any other case of an injury merely consequential. Lord Ellenborough remarked, “ it is sufficient that the action was brought within three months after the wall fell, for that is the gravamen ; the consequential damage is the cause of action in this case.” And that, “ being an action on the case for consequential damage, it could not have been brought till the specific wrong had been suffered.”

The same was the case in Gillon v. Boddington, 1 C. & P. 541, which has been supposed also to bear a similitude to the case at bar. But in that case, the reporter, in his marginal abstract, notices, that “ the act itself was not tortious or injurious, except from those consequences, which occurred sometime after.” In the case at bar, the act of returning the writ without attaching sufficient property, was the actual wrong-done, which occasioned the injury, and is the substantive cause of action. It was a wrong for which an action might instantly have been brought. Whether it could have been sustained oi* not, might still have depended on whether the plaintiff’s action, against Lane & Leadbetter, could have been sustained. If not, the neglect to attach property was no wrong or injury to him. And it might have been found convenient to continue the action against the defendant till it was ascertained, whether the plaintiff’s action against Lane & Leadbetter proved successful; and also to ascertain the amount of damage, which the nonfeasance complained of would ultimately occasion. Because, until this had been done, it might have been inconvenient to establish those facts, could form no ground to question the original cause of action against the defendant.

It is undoubtedly very true, that no man has a right of action against a wrongdoer, unless he is personally injured. But, in the case of every violation of the rights of a particular individual, the law implies damage. It may be but nominal. But still a right of action accrues for it. A sheriff might neglect to arrest and commit a worthless debtor to jail; and it might even happen that it would be productive of a pecuniary loss to the creditor, that he should do so ; still, if the creditor had a right to have him committed, a right of action would exist in his behalf, for the nonfeasance, and nominal damages would be recoverable. In the case at bar, whether the defendant, by not attaching more property, did the plaintiff a wrong, depended on the amount of his debt. That amount did not depend on any subsequent proceeding. Tt was the same, at the time he commenced his suit for it, that it was at the rendition of judgment; with the exception of the damage for the detention of the debt. The wrong done to the plaintiff, therefore, occurred when the nonfeasance took place, and not when it came to be ascertained, by subsequent events, what the precise amount of the injury turned out to be.

It is believed, that there is no substantial distinction between actions for torts, where assumpsit might also have been sustained, and official acts of misfeasance or nonfeasance, if there be any such, in which assumpsit could not have been sustained. If a tort bo relied upon, it is not perceived how there can be any such distinction. There is certainly no direct authority in support of it. But if there were any ground for such a distinction, is it not clear that assumpsit might have been instituted, instead of case, for the injury here complained of? Wherever the law requires one man to perform an official duty for another, for a reward, and at his request, does not the law imply a promise ? If so, an action would well lie upon such promise. Mr. Justice Bailey, in Howell v. Young, 5 B. & C. 259, seems so to have understood the law, when he says, “ It appears to me, that there is not any' substantial distinction between an action of assumpsit, founded upon a promise, which the law implies, that a party will do that which he is legally liable to perform, and an action on the case, which is founded expressly upon a breach of duty.”

This authority is, furthermore, directly in point, to show that the injury arising from a wrong done, takes its date from the time of doing the act occasioning the injury. An attorney, in that'case, was guilty of a misfeasance, or nonfeasance, attended with a consequent injury to the plaintiff. It was held, that the damage, subsequently arising, did not constitute a substantive cause of action, of itself; and that the statute of limitations began to run from the time that the cause producing the injury took place.

In Godin v. Ferris, 2 H. Bl. 14, it was holden, that the misfeasance of a custom-house officer, in wrongfully seizing goods, not liable by law to be seized, took place at the time of the seizure; and that the statute of limitations began to run from that time, and was not dependent upon the event of proceedings at law against the goods. Similar cases have repeatedly arisen since, and have been similarly decided in the English courts. The case of Fetter v. Beale, 1 Salk. 11, is to the same effect in principle. The Court held, that an action depending upon consequential injury to a person, arising from an assault and battery, committed so long anterior as to be barred by the statute of limitations, was also barred, though occurring afterwards.

In Miller v. Adams, 16 Mass. R, 456, in the case of the misfeasance of an officer, in not duly serving a writ, whereby the judgment rendered in the case became liable to be reversed, if was holden, that he was protected by the running oí' the statute of limitations, from the time of the act of misfeasance, and not from the time of the reversal. In Cæsar v. Bradford, 13 Mass. R. 169, it appeared that the officer, serving the original writ, falsely returned that he had taken bail, when in fact he had not; the Court decided, that the right of action accrued against him at the time of his making the false return. In Rice v. Hosmer, however, 12 Mass. R. 127, the same Court, in an action against the sheriff, for the default of his deputy, for not taking sufficient bail, ruled that the right of action did not arise till after non esl inventus returned upon the execution. Wherein the distinction lies, in point of principle, between this, and the case of Cæsar v. Bradford, is not obvious to my mind. In both, the officer must have returned, that he had taken bail in the usual form. In the one it appeared, that he had taken no bail, and in the other, that insufficient bail had been taken. The reason given by Mr. Justice Dewey, who delivered the opinion of the Court, for the decision in the latter case, is, that “ it is usual for the officer, who serves the writ, to retain the bail bond until it is called for by the plaintiff in the action; and he has no occasion to call for it, until his execution against the principal is returned unsatisfied. The creditor, therefore, cannot be presumed to know any thing of the sufficiency of the bail, until that time.” And it would seem, that he might have added, “ or whether any bail had been taken.” Upon this ground, it was held, that the statute of limitations did not begin to run, in such case, till after the return of non est inventus. And upon the authority of this case, it was so ruled again in Mather v. Green, 17 Mass. R. 60. Mr. Justice Dewey, however, in the above opinion, instanced the cases of an escape, non-arrest of the body, and not attaching goods, &c. as being those in which an action would lie immediately, or before judgment recovered in the action.

If not attaching goods, when ordered to do so, give an instant right of action, and it would seem that the whole court must have concurred with him in this dictum, the statute would begin to run from the time of such neglect; and it would seem to be an expression of an opinion, if not an authority, directly in point. Is there any distinction, in principle, between not attaching goods when ordered, and not attaching sufficient, as it respects the time when a right of action would accrue for the nonfeasance ? It could no more be told, how much the plaintiff would recover, or whether he would recover any thing, in the one case than in the other. Suppose the amount of goods attached to be trifling, and the demand of the plaintiff large, when there were goods in abundance, that might have been attached, must the creditor wait till judgment and execution, before he would have a right of action against the officer for his neglect ? If not, how much must the officer attach, short of a sufficiency, to prevent the right of action from accruing till after judgment ? Really, it does seem, that it can make no possible difference in principle, as to the time when the right of action should accrue, whether the officer returns a writ with but a nominal attachment, and a return of an attachment short of the amount, which he may be ordered to attach, and which he might have attached.

As to the argument arising from any inability to prove the amount of the actual damage till after judgment and execution, it is difficult to perceive how that should have any legitimate bearing upon the question. If a man be sued for the breach of his covenant of warranty, in his deed of real estate, he cannot tell what the amount of the damages to be recovered against him may be, till judgment recovered; still it will not affect the time of the accruing of his right of action against his warrantor. In the case at bar, if the nonfeasance had been the non-arrest of the debtors, whereby they had been enabled to flee the country, with property enough to pay the debt, the amount of damage would have been uncertain till judgment against them. The same difficulty would have existed, if the attachment had been merely nominal. It must be that the right of action exists, whenever the officer fails to do his duty; and that the ascertainment of the actual damage' is but, an incident thereto; the ascertainment of which may depend upon subsequent contingencies; as in the case of a permanent or durable injury arising from an assault and battery, and numerous other tortious acts.

In Wilcox & al. v. the Executors of Plummer, 4 Peters, 172, this whole subject seems elaborately to have been considered ; and the learning, in reference to it, to have been exhausted. The arguments of counsel were by Mr. Wirt, then Attorney General of the United States, for the plaintiff, and Mr. Webster, for the defendant. The defendant’s intestate, an attorney, had received an indorsed note for collection. He first sued the maker, and obtained judgment against him ; which proved fruitless, by reason of his insolvency. The indorser was not sued till long after a reasonable time had elapsed, after judgment against the principal; and, when sued, the action was framed in such an unskilful manner that it abated ; before which the statute of limitations had intervened, and barred the plaintiff’s right to recover. This action for the default of the intestate, come into the Supreme Court upon a disagreement of opinion, certified from the Circuit Court. The Supreme Court certified their opinion to the Circuit Court, on the first count, which was for negligently omitting to sue the indorser in a reasonable time, to be, “ that the cause of action arose at the time, when the attorney ought to have sued the indorser, which was within a reasonable time after the note was received for collection; or, at all events, after the failure to collect the money of the maker.” Mr. Justice Johnson, in delivering the opinion of the Court, remarked, that, in such case, no more than nominal damages might have been proved or recovered ; but that proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict.” The other count in the writ, was grounded upon the negligence in framing an insufficient writ against the indorser; and suffering the statute of limitations to become a bar; in reference to which the Court, held, that the injury complained of in that count must take its date from the time of making the insufficient writ; and not fiom the time when the claim became barred by the statute of limitations. From a careful examination of that case, it will seem to be difficult to infer, that the statute of limitations, in any case of nonfeasance or misfeasance, unaccompanied by fraudulent concealment, should be considered as beginning to run from any time, other than that at which the act of nonfeasance or malfeasance actually took place. The substantive cause of action then takes place; and whatever may follow, or flow from it, is but incident thereto, and must follow the fate of the primary cause.

In the case at bar, it seems to a majority of the Court, that it results from principle, and from the authorities cited, that an action had accrued to the plaintiff, if at all, on the return of the writ; and that no substantive cause of action can be considered as having arisen afterwards. The plaintiff had, for years after all the damage complained of had been fully ascertained, ample opportunity to have instituted his suit. Not having done so till after six years had elapsed from the time when his cause of action arose, he is barred; and judgment must be entered on the nonsuit.

The following reasons for his dissent were given by