Kerns v. Schoonmaker ( 1829 )

By the Court:

The plaintiff insists that his right of action did not accrue until the termination of the suit in this court, in 1829 ; and unless he can sustain this position, he is too late in his action. For if the action accrued when the mistake was made, or when the supposed stay of execution expired, or when the suit was instituted against Elliot, more than one year had elapsed before the commencement ■of this suit.

It is unnecessary to determine the precise moment when the ^statute did attach, for we entertain the opinion that no later period can be selected than the institution of the suit against Elliot. Admitting that the plaintiff might reasonably expect Elliot to fulfill his supposed recognizance, and pay the debt, yet, when he evinced his intention not to be bound, the plaintiff’s remedy against the justice was complete.

It is, however, objected that only nominal damages could have been recovered, previous to the determination of the suit against Elliot. This objection seems to be removed, and, indeed, the whole case disposed of, by the decision of the Supreme Court of the United States, in the case of Wilcox et al. v. Plummer, 4 Peters, 172. It was a suit brought against an attorney for negligence. The plaintiffs placed a note in the hands of Plummer for collection. On May 7, 1820, he commenced a suit against the drawer, but neglected to do so against the indorser. The drawer proved insolvent. On February 8, 1821, Plummer sued the indorser; but in consequence of a misnomer, the plaintiffs were nonsuited in June, 1824. Before the nonsuit, the action against the indorser was barred by the statute of limitations. The suit against the attorney was instituted on January 27, 1825, to which was pleaded the statute of limitations of North Carolina, which interposes a bar after three years. Mr. Justice Johnson, in delivering the opinion of the court, uses this language: “When the attorney was chargeable with negligence, his contract was violated, and the action might have been sustained immediately. Perhaps in that event, no more-than nominal damages may be proved, and no more recovered; but, on the other hand, it is perfectly clear, that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action. This is fully illustrated by the case from 1 Salk. 11, in which a plaintiff having previously recovered for an assault, afterward sought indemnity for a very serious effect of the assault, which could not have been anticipated, and, of consequence, could not have been compensated, in making up the verdict.”

The cases are numerous and conclusive on this doctrine. As long ago as 20 Eliz., 1 Cro. 53, this was one of the points *ruled in the Sheriffs v. Bradshaw. And the case was a strong one, for it was altogether problematical whether the plaintiffs ever should sustain any damages from the injury. The principle has often been applied to the very plea here set up, and in some very modern cases. That of Baltley v. Faulkner, 3 C. & A. 288, was exactly this case; for there the damage depended upon the issue of another suit, and could not be assessed by a jury until the final result of that suit was definitely known. Yet it was held that the plaintiff should have instituted his action, and he was barred for not doing so. In Howell v. Young, 5 B. & C. 254, the same doctrine is affirmed, and the statute held to run from the time of the injury, that.being the cause of action, and not from the time of damage or discovery of the injury, (a)

Demurrer sustained.

(a) The recognizance taken by the justice was as follows:

Jacob Kerns ") Eecognizance bail, 25.

vs. Simon Elliot appears, and acknowledges him-

John Stewart, ) self bail in the above case.