Governor v. Gordon, 15 Ala. 72

Governor v. Gordon

15 Ala. 72 | Ala. | 1848

CHILTON, J.

A notary public who receives his appointment and commission from the governor of the State, upon the recommendation of the judge of the county court, must be regarded as a public officer of the county. The statute requires him to enter into bond, with sufficient security, to be approved of by the judge of the county court, in the sum of $2,000, payable to the governor and his successors in office, for the faithful performance of the duties of his office. Clay’s Dig. 379, § 7. By the first section of the act of 1832, (Clay’s Dig. 329, § 90,) it is provided that “no action, suit or motion, shall be maintained against the surety or sureties of any sheriff, constable, or other public officer of this State, for any malfeasance, misfeasance, or other cause whatsoever, hereafter committed, unless the same be commenced or pre*76secuted within six years next after the commission of the act complained of; or if the claim be in favor of an infant, or person non compos mentis, or other person, disabled by law from bringing suit, then within three years after such disability to sue, shall cease to exist,” &c. By the act of 1819, (Dig. 379, $ 7) the bond of the notary is required to be recorded in the county where he resides, “ and may be sued on by any party or parties injured, in like manner and with like effect, as bonds given by sheriffs and coroners, for the faithful execution of the duties of their respective offices.” We think, from the language of these statutes, it is most manifest that a notary public is a public officer within the meaning of the first section of the act of 1832, and that his securities are not liable on his bond for his malfeasance, misfeasance, or other improper conduct, unless suit was commenced against them “ within six years next after the commission of the act complained of.”

It is insisted, however, by the counsel for the appellant, that the cause of action could not be said to have accrued until Newbold availed himself of the want of notice; as, until then, no injury had resulted to the bank from the failure of Marsten to give the required notice. And it is further insisted, that the circumstances make out a case of fraud against the notary, against which the statute of limitations does not begin to run until the fraud is_discovered. It might be a sufficient answer to both these positions to say, the act complained of was the failure of the officer to give notice to Newbold, the indorser, and in certifying in the protest that such notice had been left at his office in Mobile, when in fact he had no office in the city. Since that time, the officer has done no act in regard to the note, for which his sureties can be held responsible. Now, is it permissible for the court, since the statute, in plain and unequivocal terms, fixes upon the date of the act complained of for the commencement of the limitation, to. fix upon another and different period ? It occurs to me we should by the construction contended for, virtually annul the statute. If the statute does not begin to run until Newbold availed himself of the want of notice, then the bank would have the right to prolong the liability of the surety to any period short of twelve years from the maturity *77of the note. Or, if Newbold, when sued, chose to waive the statute of limitations, and to rely upon the defence of want of notice, then the sureties’ liability would be prolonged to an indefinite period at the pleasure of the plaintiff. Such cannot be the correct construction of a statute evidently designed for the repose of the officer’s sureties, and to rid them of responsibilities after the expiration of six years .from the happening of the cause of complaint. The legislature very correctly concluded, that after the lapse of so many years, it would be difficult, if not impossible, in many cases, for the securities to find proof to explain the various acts of their principal, for which they might be sued, so as to exonerate themselves from liability. Besides, had the legislature intended to date the commencement of the statute of limitation from the discovery of the default, or from the time that the party ascertained such default would prove injurious to him, some such provision would doubtless have been inserted. But, although there is a saving as to infants, non compotes, and persons who are disabled by law from bringing suits, there is none as to the case made by the record before us. This, though not by any means conclusive, is at least persuasive to show, that the construction contended for is erroneous. A question having a strong analogy to the one before us, was decided by this court in The Governor, use, &c. v. Stonum, adm’r, 11 Ala. Rep. 679. In that case, a sheriff having several executions in his hands, collected the money, and returned the writs, and shortly afterwards died. In about nine years after the return, a demand was made of his administrator for the money. The question was, whether the statute which we have above copied, commenced running from the time of the demand. The court held it did not, and say, that it commenced in favor of the surety when his responsibility was conclusively ascertained. It is there said that any other construction of the statute would make it perfectly illusory, as the surety has no means of ascertaining whether the money has been paid over or not, and cannot therefore protect himself by insisting on a suit being brought, or by discharging it himself, and resorting to his principal. In Mardis, adm’r, v. Shackleford, 4 Ala. Rep. 506, it is said: ci It may be regarded as settled law, that the statute began to *78run from the time the intestate was chargeable with, negligence ; for then, the right of action accrued in favor of the plaintiff.” Many cases might be cited to show that the statute begins to run from the time of the negligence, and not from the ascertainment of the injury. See Wilcox v. Plumer, 4 Peters’s Rep. 172; West v. Rice, 9 Metc. Rep. 564; Betts v. Norris, 8 Shep. Rep. 314. In Kerns v. Schoonmaker, 4 Ham. 331, it was held, that the statute begins to run as soon as the injurious act complained of is perpetrated, although the actual injury is subsequent, and could not be known, or immediately operate. See also Miller v. Adams, 16 Mass. Rep. 456; 12 Id. 127; 17 Id. 60. In the President, &c. of the Bank of Utica v. Child, 6 Cow. Rep. 238, the precise point here involved came before the court, and it was ruled that the statute commenced running from the time the notary failed to give the notice required to fix the liability of the indorser, and this, although the injury was ascertained by suit and judgment within the period of six years. So that, leaving out of view the peculiar phraseology of our statute, we think the law is clear, that the general statute of limitations, if it were six years, would embrace the case at bar. That nominal damages could alone be received in some cases, is no objection to dating the statute from the time of the default. See Mardis’s adm’r v. Shackleford, supra. The party who apprehends the damage must quicken his diligence to ascertain it, or rely upon his suit brought within the six years, to recover for the probable injury. 4 Cow. Rep. 245. No question as to the fraudulent concealment of the cause of action by the notary from the plaintiff arises in this case. There is no evidence of such fraud, and we are not to presume it, when the facts may consist with honesty of intention; non constat, but that the notary supposed he had given the notice by leaving it at Newbold’s office. He may be liable for want of that diligence which the law requires of him in ascertaining the fact of the indorser’s residence, and no question of fraud be involved. We therefore defer going into an examination of the many conflicting authorities upon the point, whether a fraudulent concealment would avoid the statute until a case should arise necessarily involving it. See Smith v. Bishop, 9 Verm. Rep. 110; Allen *79v. Mille, 17 Wend. Rep. 202; Fee v. Fee, 10 Ohio Rep. 469; Troup v. Smith’s ex’rs, 20 Johns. Rep. 33; Ib. 277; Abell v. Harris, 1 Gill & Johns. Rep. 367; Baines v. Williams, 3 Iredell’s Rep. 481; Martin & Yerg. Rep. 361; Miles v. Berry, 1 Hill’s (So. Ca.) Rep. 296; contra, Doug. 664; 5 Mason’s Cir. Ct. Rep. 449; 3 B. & A. 436; 3 B. & Bing. 73; 3 Don. & R. 330.

We think it is clear, that the plaintiff having failed to prosecute the security upon the bond for more than six years' from the commission of the notary’s default, the statute ex- ■ empts the surety from liability, and that the court below properly gave judgment for the defendant.

The judgment is affirmed.