— It will be admitted, that the statute of limitations commences to run from the time, when the right of action accrues. The only difficulty consists in determining that question. The general rule is believed to be, that in actions founded on contract, express or implied, the right of action accrues upon the breach of it; and in actions founded on tort, it accrues when the party is injured. A mere violation or neglect of duty enjoined by law, or otherwise imposed without contract, unless accompanied or followed by an injury to some person, cannot be the foundation of an action at common law. The law does not allow an individual to maintain a suit to redress moral wrongs, from which he has suffered no injury. The state or sovereign power only can interpose in such cases. And to decide whether the omission to comply with an order to attach property was a wrong or an innocent act, can afford little aid in forming a conclusion, token the right of action *325first accrues. That right does not arise out of any such moral attribute of the act. Nor does it first accrue when a wrongful act is done, unless the party suffers from it at that time, which is the case in trespasses; and may, or may not, be the case in those instances, in which an action on the case would be the proper remedy. There is therefore a fundamental distinction in this matter between actions founded on contract, and those founded on tort. And a solution of the remarks made in some of the decided cases may be found in an exception, to which most if not all general rules are liable. To the rule, that in actions founded on tort the right of action first accrues upon the injury suffered, an exception may be found in cases where the form of the action may be tort or assumpsit, at the election of the party. In such cases, if the party elects to bring an action of tort, the mere form of action will not assist one to determine when the right of action accrues. There is a class of cases falling within this exception ; and among them is the case of Howell v. Young, 5 B. & C. 259. And this fully explains the remarks of Justices Bayley and Holroyd in that case. Mr. Justice Bayley 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. Whatever may be the form of action, the breach of duty is substantially the cause of action.” The language of every judicial opinion is explained by the subject matter under consideration ; and the breach of duty then considered, was that arising out of the relation of attorney and client, for which assumpsit might as well have been maintained as a special action on the case, and not such a breach of official duty as can never be the foundation of an action of assumpsit. When the action is founded upon a neglect of official duty, the gist of the action is the injury suffered; and no action can be maintained but one in form, as well as substance, founded on that injury; unless it be otherwise provided by statute. The relation between an officer and the person for whom he per*326forms an official act, is not that arising out of a contract, express or implied. The law requires the performance of the act; and requires it in many cases, when the officer would refuse to perform it, if he were at liberty to do so. The compensation does not arise out of any such implied or express contract; but it is the reward of the law. And in many cases it is more, and in others less, than would be awarded, if the services were performed by virtue of a contract. No case has been produced from the books, shewing that assumpsit could be maintained for the omission to perform such an official act. And Mr. Justice Bay ley’s remark, in Howell v. Young, does not apply to a case of official neglect of duty, but to a case of professional neglect. ;And in such cases, while the relation between the parties arises out of a contract, express or implied, the action may be in form of assumpsit on a breach of the contract, or in form of tort arising from a neglect of duty. The distinction, as to the time when the right of action accrues, between actions of tort founded on the neglect of official duty, and on the neglect of professional duty, is this: for the neglect of a professional duty, a right of action accrues as soon as there is a breach of the contract, irrespective of the form of action. And if an action of tort be brought for the injury, which may subsequently happen from such breach, that cannot change the fact, that a right of action existed as soon as the contract was broken. While in actions founded on an official neglect of duty, it does not necessarily follow, that an injury has happened from that neglect, and there is no earlier right of action in any other form. In this class of cases, therefore, the right of action accrues, when an injury happens, whether that be at the time of the neglect of duty, or at a subsequent period.
With these principles there will be little difficulty in this case in arriving at a satisfactory conclusion.
The plaintiff sued out a writ against John Lane and Jabez Leadbetter. The ad damnum was two thousand dollars. The defendant, being a deputy of the sheriff, received the writ with written instructions to attach all their real estate. On the 12th *327of June, 1829, he returned on it an attachment of certain real estate described, not including all the real estate of Leadbetter which he might have attached ; judgment was recovered June Term, 1834, for $1558, debt, and $317.67, costs; and the execution issued thereon was levied within thirty days after judgment on all the real estate attached, leaving a balance unsatisfied of $332,69. Upon these facts, when could the plaintiff have first maintained an action against the defendant for ' neglect of official duty ? Not until he had suffered an injury. Being enabled to exhibit all the facts, could he have proved an injury between the date of the attachment and the rendition of judgment ? During that time, the amount due from Lam; and Leadbetter was undetermined and uncertain. Whether the real estate attached would satisfy the whole judgment, was uncertain. This could be ascertained only by the appraisement. It might increase or decrease in value during the time that the suit was pending. There might be an increase, from a rise of prices, and from repairs, and from improvements ; or a decrease from a fall in prices, and from dilapidation, and from destruction by fire or otherwise. He could not have recovered nominal damages, for the reasons before stated, without proof of some actual injury at the time of the commencement of the suit. Damages may in such cases be recovered for injuries suffered to the time of the trial, but this is true only, when there was an existing cause of action, and some damage at the time of the commencement of the suit. An action of tort cannot be maintained, if no injury had been suffered at the time of its commencement, by proving that an injury has since happened from the cause alleged. There may be, and often is, an immediate injury arising out of a neglect, of official duty; and in such cases the right of action accrues instantly. And in certain cases the law implies an injury as arising necessarily from the wrong done, as in slander. In the present case the burthen of proof would be on the plaintiff, and he must make it certain that he had been injured, before he could maintain an action. And it is not perceived how this, could possibly be done, until after the plaintiff had recovered *328his judgment, if it could be, before the insufficiency of the property attached to satisfy it was legally ascertained.
There does not appear to be any case brought to the consideration of the Court, opposed to these positions. The case of Fetter v. Beale, 1 Salk. 11, was an action for assault, battery, and maim. It appeared, that the plaintiff in a former action of assault and battery had recovered damages for the injury, and that since that time a piece of his skull had come out, for which this action was brought. The decision was, that the former recovery was a bar, because the whole injury, as well that, which was prospective and contingent, as that, which was existing and apparent, could have been proved and recovered for in the first action. The case of Goden v. Terris, 2 H. Bl. 14, was an action against an officer of the customs, for illegally seizing goods as forfeited. It was objected, that the action was not commenced within three months next after the matter or thing done, as the statute required. The decision was, that the statute commenced to run from the seizure. The action was trespass, which implies damage from the illegal act, and there was a present damage also by removing the goods, and the whole proceedings were at that time, either lawful or unlawful.
The case of Howell v. Young, was a special action on the case, founded, as before stated, on a breach of an implied contract, for which assumpsit might have been brought. And there was also a present' defect of title, capable of being clear-, ly and certainly established by proof, as soon as the neglect of duty occurred. And this present defect of title is the foundation of the remark of Mr. Justice Bayley, where he says, “if the allegation of special damage had been wholly omitted, the plaintiff would have been entitled to a verdict of nominal damages.” The ground, upon which he would have been entitled immediately to that or a greater measure of damages, is also explained by Mr. Justice Holroyd, where he says, “so here, if the action had been brought immediately after the insufficient security had been taken, the jury would have been bound to give damages for the probable loss, which the plaintiff was *329likely to sustain from the invalidity of the security.” The ease of Short v. McCarthy, 3 B. & A. 626; was assumpsit against an attorney for neglect of duty in not making a diligent search of the books of the Bank of England respecting the title to certain bank annuities: and the decision was, that the statute commenced to ran from the neglect of the duty, which was a breach of the contract, although the plaintiff did not discover, that the title was bad until sometime afterward. The case of Brown v. Howard, 2 B. & B. 73, was also assumpsit against an attorney for neglect of duty in not laying out money on good security; and the defect of title did not become known tó the plaintiff until sometime afterward. The decision was, that the cause of action accrued from the neglect of duty, that being a breach of the contract. The case of Battley v. Faulkner, 3 B. & A. 288, was assumpsit on a contract to deliver spring wheal, and the defendant delivered winter wheat, which being sown as spring wheat, did not produce a crop. And it was decided that the cause of action was the breach of the contract, although the special damage became first known to the plaintiff, when he expected his crop. The case of Granger v. George, 5 B. & C. 149, was trover for boxes containing books and papers. And it was decided, that the gist of the action was the conversion, and that the statute commenced to run from that time, although the plaintiff did not come to the knowledge of the conversion until sometime afterward. In these cases, where the party would seem to have suffered in consequence of his ignorance, it is apparent, that he might, by a careful attention to his business, have obtained an earlier knowledge of the facts, and might have been enabled to prove his loss, and to obtain redress. The case of Wilcox v. the Fxeculors of Plummer, 4 Pet. 172, was assumpsit on the implied contract of an attorney to conduct the business of his clients with diligence and skill. And the decision was, that the right of action accrued upon the breach of that promise. Mr. Justice Johnson, in delivering the opinion of the Court, says, “the ground of action here is a contract *330to act diligently and skilfully; and both the contract and the breach of it admit of a definite assignment of date.”
The following cases tend to establish, confirm, or elucidate, the positions before stated.- The case of Roberts v. Read, 16 East, 215, was a special action on the case against surveyors of highways for digging so near the plaintiff’s wall as to undermine it, and cause it to fall. The act was done in May, 1810. The wall fell the following January. Lord Ellenborough says, “ 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“ it Gould not have been brought till the specific wrong had been suffered.” And Mr. Justice Bayley significantly asked, “how Was the damage to be estimated, before it actually happened.” The case of Gillon v. Boddington, 1 C. & P. 541, was an action on the case for an injury occasioned to -the wall of a wharf, by making excavations to prepare a dock. These were made in the year 1822, and the wall fell in 1824. The decision was, that the statute did ■ not commence to run until after the wall had fallen. Rice v. Hosmer, 12 Mass. R. 127, was an action on the case for official neglect of duty in omitting to take sufficient bail. And in the opinion of the Court it is said, “ had the plaintiffs brought their action at any time, before they obtained judgment in the 'suit against Carlton, - they could have shewn no actual damage. It was then uncertain, whether they would prevail in their suit; and if they did, the principal might satisfy the judgment, or be surrendered by the bail.” There do not appear to have been greater difficulties in that case, than in the present, in maintaining an action before judgment. In that case it is also said, that “ there is no doubt, that an action upon the case for the neglect or misconduct of an officer, may lie in some cases immediately or before judgment in the suit; as for suffering an escape, neglecting to arrest a debtor, or to attach his goods, or to return the writ.” And Mr. Justice Dewey very correctly says, “ but those cases are different from the'present, and depend on different principles.” The reason of the difference in principle is *331this, that in those cases named by him as examples, there would be a present injury arising, and capable of being proved, as soon as the neglect or act had occurred. The case of the sheriffs of Norwich v. Bradshaw, Cro. El. 53, was an action on the case for an escape against the party committing it. And the decision was, that the sheriffs were thereby damnified, although they had neither been sued for, nor paid the debt. The reason is obvious; they were by the escape made presently liable for it.
The case of Ravenscroft v. Egles, 2 Wilson, 294, was an action on the case against the warden of the Fleet prison for a voluntary escape. The prisoner returned to prison on the day of the escape, and the plaintiff proceeded to judgment against him. The decision was, that the action could be maintained. In the opinion it is said, “ though the plaintiff might lawfully proceed to judgment against him, yet he could not charge him in execution.” And if an escape be voluntary in the jailer, “ nothing afterwards will purge it.” Here therefore was a present injury, which could be proved. The case of Alexander v. Macauley, 4 T. R. 611, was an action on the case against the sheriffs for an escape. The plaintiff could not prove any debt against the person who escaped ; and the question was raised, whether he could recover nominal damages, and it was decided, that he could not. The case put by Mr. Justice Dewey, of neglecting “ to attach his goods,” is that of a neglect to make any attachment, when directed to do so ; and between such a case, and that of neglecting to attach sufficient, there is this important distinction: in the former case, the plaintiff is deprived of the security, to which he is entitled by law ; and that is a present injury capable of present proof; and it lays the foundation of an action upon' the case on the principle before stated, that the right of action accrues, when the injury is suffered. In the latter case, there is no violation of the right to have security. And when there is a. substantial, and not a nominal and deceptive compliance with the order to attach, it must remain uncertain, whether any loss will arise from the neglect, until after judgment, if not until after an ap*332propriation of the property, which has been attached. Take the case of an attachment of a large stock of goods as an example. The neglect to make an attachment destroys the right of security, and the immediate damage would be apparent and of easy proof. If two thirds of the stock were attached, when the order was to attach the whole, the officer might be able to prove by the wholesale prices and by the present cash value, that he had in custody sufficient to cover the ad damnum and all costs, and if the plaintiff immediately commenced a suit he must fail. And yet these same goods on a sale according to law might not pay two thirds of the debt. The right of action here in fact would first arise, when the plaintiff was injured. The case of Miller v. Adams, 16 Mass. R. 456, illustrates this distinction. That was an action upon the case against a deputy of the sheriff for neglecting to serve a writ. He had attached property and summoned a trustee, but had not made service on the principal defendant. The decision was, that the right of action accrued on the return of the writ, although the omission to serve on the defendant did not become known to the plaintiff until a long time afterward. Here there was a present injury at the time of the return, and capable of proof; and the cause of action therefore then accrued ; and it was through the inattention of the plaintiff or his attorney, that it was not immediately known. Where the remedy is perfect, although the party may not know it to be so, the statute will commence to run against him. But when he has come to the knowledge of a wrongful act and fears an injury from it, it will not begin to run, until he is actually damnified. Cæsar v. Bradford, 13 Mass. R. 169, was an action on the case against the sheriff. The first count was for a false return by his deputy in stating, that he had taken a bail bond, when he had not. The bail bond was not demanded for more than a year after judgment, when there was no remedy upon it against the bail. The decision was, that the limitation of one year was for the benefit of the bail only, and not for the sheriff. The action was not commenced until after non est inventus had been returned on the execution. And at *333that time the plaintiff had suffered an injury in being deprived of his security arising from the custody of his debtor, or its equivalent a bail bond.
Mather v. Green, 17 Mass. N. 60, was an action on the case against a deputy of the sheriff for taking insufficient bail. One person only was taken as bail. A judgment on scire facias had been obtained against him, and the execution issued thereon had been returned with an indorsement, that neither body nor property could be found. For the plaintiff it was contended, that the right of action did not accrue until after this return. The decision was, that it accrued on the return of non est inventus on the execution against the principal, as the plaintiff then might have inquired, and “ would have ascertained the fault of the defendant in that he had taken but one surety.” At that time he had suffered an injury, and could have proved, that he had been deprived of the security, to which he was by law entitled, and that such security had become highly important. Bailey v. Hall, 4 Shepl. 408, was an action on the case against the sheriff with a count in trover. The plaintiff alleged, that a deputy of the defendant had attached his goods on a writ in favor of Howard, and had wasted them before the judgment. The goods were not applied to satisfy the execution issued on the judgment recovered by-Howard against the plaintiff. The decision was, that the right of action did not accrue until the attachment was dissolved. The case of Harriman v. Wilkins, 2 App. 93, was an action on the case against the sheriff for the neglect of a deputy in taking a replevin bond with insufficient sureties. The decision was, that the right of action did not accrue until after judgment for a return and a failure to procure the property. It will be perceived, that the cases are all reconcilable and consistent with the principles before stated; and this would seem to be sufficient to test their accuracy.