Snedicor v. Davis , 17 Ala. 472 ( 1850 )

CHILTON, J.

The only question in this case is whether the statute of limitations of six years commences running from the time that the default of the deputy oceured, which ultimately caused his principal to pay the demand of Cawthorae, or from the time that the injury to the principal was developed. It appears that more than six years have elapsed since the sheriff returned an execution issued against the principal and security upon the writ of error bond no property, &c., so that Davis had «ot only by his negligence taken insufficient surety on the bond, but this insufficiency had been determined by a return of the execution on the affirmed judgment by the proper officer unsatisfied.

It is contended with much ability and zeal by the counsel for the plaintiff in error, that the statute did not begin to run against ■the plaintiff until the recovery ef a judgment against him by Hawthorne for his deputy’s default — that until then it was doubtful whether the plaintiff would sustain any damage from the negligence or wrongful act of the deputy, and to this point they •cite many authorities, some of which we will presently examine. Before proceeding to examine the cases, we will take occasion to observe that although by the act of 1836 the deputy clerks of the respective clerks of this State are empowered w to transact all business in the absence of the principal which the latter -could do were he present, first taking an oath to support the ■constitution and faithfully to discharge the duties of deputy •clerk of the court in.which he acts” — -.(Clay’s Dig. 146,^ 19)— yet the design of the Legislature by this enactment was not to -create him a separate and distinct officer of the court or to destroy the relation which subsisted between him and his principal. He is deputed or appointed by his principal amd is amenable to him, and his principal is amenable for his acts to parties who may be injured by them, if such acts come within the scope of the duties' and business assigned him. It is unnecessary .now to determine whether if he do an act in his own name as deputy clerk under this statute, without purporting to do it in die name or on behalf of his principal, he would uot be liable to the party directly who might be injured by his- negligence? This is not the case before us.' Here he approved the bond in-the name of his principal, and on his behalf as his deputy; and we do not entertain a doubt of his immediate liability to hisprin-cipal, who with his- sureties alone must answer to the party injured for the unlawful act of the agent or deputy. — McNutt v. Livingston, 7 Smede & Mar. Rep. 641. The deputy is not required to enter into any bond for the security of th© public. He may be appointed even without writing, (Stewart v. Desha, Sheppard & Co. 11 Ala. 844,) and displaced at the pleasure of the principal. He is subject to the principal’s control and bound to conform to his requirements and to obey his behests. When therefore he does an act in the name and on behalf of his principal falling within the scope of his ordinary duties, it would be unreasonable and unjust to hold him responsible for it to a third party, when it is presumed to be done by the command of the principal although the principal may not be present. It seems to us that the same doctrine which applies to deputy sheriffs equally applies to deputy clerks, unless an exception obtain against the latter when in the absence of the clerk they assume to act in their own name under the statute above refered to. In Pond v. Vanderveer, at the present term, we held the deputy sheriff not responsible, except to his principal, for a default occnring in the management of bis official business, and such seems to be the well settled doctrine in England and in this country, where no statutes control It. — Owens v. Gatewood, 4 Bibb, 494, and cases cited; 8 Bacon’s Abr. (Bouvier,) tit. Sheriffs, II., and cases cited in notes. But we turn to the question as to when the cause of action accrued. What is the cause of action? The answer plainly is, the negligence of the deputy in taking and approving the bond with insufficient security by means of which his principal, the plaintiff, was exposed to an action on the part of Cawthorne, the plaintiff in the superseded judgment. But it is replied that although this is the cause, yet no injury was sustained by Snedicor, the principal, and no damage could have been recovered until he had sustained some 'loss by the commencement of suit or recovery of judgment against him by the party whose interest was directly affected. And just here, we may be allowed to observe, consists the error of the argument of the plaintiff’s counsel. That the negligent act of the deputy on account of which his principal was immediately exposed to an action for damages and made liable to pay the debt, is sufficient to authorise the latter to maintain an action, is, we think, an undeniable proposition of law. He has by his negligence or tortious breach of duty made his principal liable as security to pay the whole debt, and that too when the parties primarily liable are insolvent, as it seems they were in this case. No one will contend that this is not an injury. But the consequential damage is not fully developed. Cawthorne mayor may not sue, or if he sue, he may fail to obtain a judgment, and it is argued that this uncertainty as to whether any special damage will ever accrue shows that the action does not accrue until such damage is sustained or becomes developed. Let us test this for a moment. Suppose Cawthorne had immediately sued Snedicor for the negligence and had recovered say five hundred dollars — then the damage would have been reckoned certain: Davis is then sued by Snedicor and this $500 and the cost are recovered from him : But Cawthorne afterwards takes his case to the Supreme Court and reverses it and then recovers $1000 — what then ? Can Snedicor sue Davis again, and toties quoúest I know of no law which would authorise such subsequent action. Now I concede the general rule to.be, as Chief Baron Comyn states it, “ that damages are only allowed to the time of the action commenced.” — Comyn’s Dig. Damages, D. But this general rule is subject to the important qualification, “ that the plaintiff is at liberty^ to prove and the jury are bound to take into consideration those direct and immediate consequences of the act complained of which are so closely connected with it thátthey would not of themselves furnish a distinct cause of action.” — Sedgw. on the Meas, of Dam. 104-5. The case of Fetter v. Beal, 1 Lord Raym. 339, is an apt illustration of the principle here contended for. The plaintiff had sued for a battery and recovered a small sum, ¿£11. Afterwards, as a consequence of the wound a part of his skull came out and he sued again to recover for this subsequent damage. But it was held that the jury must have considered the nature of the wound and have fully compensated the plaintiff for it. Lord Holt, C. J., said, “If this matter had been given in evidence, as that which in probability might have been the consequence of the battery, the plaintiff would have recovered damages for it. The injury which is the foundation of the action is'the battery, and the greatness or consequence of that is only in aggravation of damages.” — lb. 632 ; Sedgw. on Dam. 105. The same doctrine was laid down in Howell v. Young, 5 Barn. & Cres. 259; (S. C. 11 Eng. Com. Law R. 219.) In that case an attorney was sued for- failing to exercise due care and diligence in ascertaining whether a warrant of attorney and certain mortgages on freehold and leasehold premises furnished good security for the repayment-ef ¿63000, proposed to be loaned on the faith of them. He had been retained for that purpose in 1814 and represented the security sufficient. The interest was paid up to 1S20, when it was discovered that the security was insufficient. It was held that the default of the attorney constituted the gist of the action, and lhat the statute of limitations began to run from the time of the default, and not from the time that the securities were ascertained to be insufficient. In that case as in this the default or negligence "was the cause, the special damage afterwards occuring the consequence, and it could not be said that the party in either case "had furnished a cause of action against himself within the'time prescribed by the statute as a bar, when it is conceded that neither had done any thing within that period. It is perhaps unnecessary for us now to decide whether if Snedicor had sued Davis for the negligence complained of immediately after-it-occurred,-or after it was ascertained by a return of nulla bona that the bond he had taken was insufficient, he could have recovered the probable prospective damage. We are aware that it is a very uncertain means of arriving at justice, and that the propriety of the rule is questioned by very respectable American authorities. — Sedgw.-on Dam. 109, citing Wilcox v. Plummer’s Ex’rs, 4 Peter’s R. 172; see, also, Mardis’ Adm’rs v. Shackelford, 4 Ala. 506, -where this court arguendo seem to indicate the rule to be that nonimal damage could alone be recov•cred. We are inclined to follow the English rule as approxi'inating nearer the justice >of the case, but leave the point undecided, as in our opinion, whether the party could or could not recover more than the damages which had accrued within the six years from the happening of the deputy’s default, by any action be could have commenced within that period, still this does-not affect-the position that the statute dates from the time •the malfeasance.or omission which-occasioned the damages oocurred, or at least in this case from the time that it was ascertained that Caw theme could not render the security taken by the deputy available. We think this position is most fully sustained by the Supreme Court of the United States, in Wilcox v. Plummer’s Ex’rs, 4 Peter’s R. 172; Mardis’ Adm’rs v. Shackelford, supra; Governor, use &c. v. Gordon, 15 Ala. R. 72-5, and the authorities there cited; see, also, Argall v. Bryant, 1 Sandford’s Sup. Ct. Rep. (N. Y.) 98, and cases cited. And the same rule will apply whether we regard the action purely in tort or in the nature of au action ex contractu. — Argall v. Bryant supra. In each the violation or breach of duty which may cause the damage is the gist of the action. So it is said, “ The gist of the action of assumpsit for the violation of a special contract is the breach of such contract, and not any resulting or collateral damage occasioned thereby. The statute runs therefore from the time the contract is broken, and not from the period when any damage arising therefrom is sustained by the plaintiff; and although such damage accrue within six years, the action is defeated by the statute if the contract was broken beyond that period.” — Angel on Limit. 124, citing Howell v. Young, supra, and Rankin v. Woodworth, 3 Penn. Rep. 48. A contimy doctrine would in many cases entirely defeat the object of the statute and postpone the time within which actions might be brought to an indefinite period.

But it is insisted that the cases above refered to are not applicable to this; that in these the default happened between the parties directly to be affected, but in this Snedicor was only consequentially to be affected, and that as the damage he sustained depended upon the action of the creditor whose debt had been lost by the deputy’s default, it. was in its nature contingent, and until it happened could furnish no ground of action. This objection we have anticipated by showing that au action did immediately accrue to Snedicor as soon as his deputy by his negligent act made 'him a guarantor of the sufficiency of the writ of error bond. Now when the consequential damage is the cause of action, as in the eases of Roberts v. Read, 16 East. 216, and Miller v. Eskridge, 1 Ired. 147, it is clear (hat the statute dates from the happening of the consequence complained of. We have carefully examined the authorities cited by the plaintiff in error and so ably commented on by them, and without extending this opinion by a particular examination of them, are satisfied that they do not establish the contrary of the proposition for which we contend.

The view we have taken shows that the judgment of the Circuit Court must be affirmed.