President v. Childs, 6 Cow. 238

President v. Childs

6 Cow. 238 | N.Y. Sup. Ct. | 1826

Curia, per

Woobwosth, J.

(after stating the pleadings.) The question to be decided is, whether the statute of limitations began to run from the time when the note fell due, since which more than six years elapsed before the present suit was commenced ; or from the time of the recovery against the plaintiffs, which was within six years.

It is contended, that the cause of action was not complete until the plaintiffs sustained damages. I apprehend this cannot be the test. On the principle assumed, the defendant’s liability might continue indefinitely, when, from the nature of the case, there is no such necessity. He was liable to be prosecuted by the plaintiffs, immediately after his default. He was their agent. In such an action, it is true, a question might be, what damages have the plaintiffs sustained ? That would depend on the insolvency, or probable extent of the insolvency of the ma*-kers. To that extent, the plaintiffs were answerable to Smedes ⅜ Canfield, the holders of the note. The defendant could not object that Smedes & Canfield had not recovered of the plaintiffs. It would be a sufficient answer,that they were liable to the same measure of damages claimed from the defendant. To that amount, a loss had arisen, which the defendant ought to pay. He had no concern with the inquiry, whether the holders of the note would or would not, at a future period, call on the plaintiffs for the loss. I consider the cause of action against the defendant, to rest on the default in not giving notice j *246and as arising immediately on the happening of that default; And if so, the statute began to run from that time. The case of Miller v. Adams, (16 Mass. Rep. 456,) contains a recognition of the principle. The former brought an action against the latter, a deputy sheriff, for making a defective return to an original writ, sued out against several defendants. The omission was, to return a summons as to two of the defendants ; for which cause, the judgment obtained against them was reversed. Adams pleaded the statute of limitations; upon which the question was, whether it ran from the time when Miller was actually damnified by the reversal, or when the return was made j and held the latter. The court say, the judgment being then liable to reversed, the plaintiff might have immediately brought his action, and would have been entitled to his damages. A like principle will be found in two late cases, decided by the English K. B. (Battley v. Faulkner, 3 B. & A. 288; and Short v. M'Carthy, id. 626.) In the' last, the plaintiff, as here, declared in assumpsit; and stated as a breach, that the defendant did not diligently and sufficiently make search at the bank of England, to ascertain whether certain stock was standing in the names of certain persons, the defendant having been employed as an attorney so to do. The omission to search, took place more than six years before action brought. The court held the omission to search was the cause of action, from the time of which the statute ran.

The recovery in the former case cannot be the measure of damages, because there is no averment that the defendant had notice ; and consequently, for aught that appears, he had no chance of defending as to the material point. What has been lost by the neglect ? It will scarcely be contended, that if, notwithstanding the omission to charge the endorser, the makers of the note were unqestionably responsible, and of undoubted credit, the holders were entitled to recover the whole amount of the note. The defendant is not to be charged with the amount of the judgment when he has not been heard. If, indeed, the pf&intiffs had given notice to the defendant of the suit *247commenced against them, and required him to defend, 1 incline to think he would be concluded as to the damages. But even then, it must appear that the action was commenced against the defendant within six years ; for the right of action was complete the moment after the neglect. If the plaintiffs omitted to prosecute till after a recovery against them, and that was after six years, the remedy would be barred by the statute.

If the view I have taken be correct, it follows that the. plaintiffs might have sustained their action, without waiting to be prosecuted, or paying damages to the holders. If, however, it were otherwise, I think payment of the damages by the plaintiffs, without suit, would not have been in their own wrong; although it would be attended with risk in this respect. If they could not show that the damages sustained by the defendant’s default, was equal to the sum paid in satisfaction to the holders, they would incur a loss pro tanto. The defendant would be bound to indemnify for the amount paid, provided it did not exceed the injury proved at the trial. Beyond this, he would not be holden. If it be necessary to have paid the damages in the first instance, I do not see how the plaintiffs, under the circumstances in which they were placed, could avoid this risk.

On the argument, this action was likened to the action for an injury to a servant, per quod servitium amisit ; and the case of digging a pit in the highway seven years ago, in which the plaintiff’s leg was broken five years after-wards, and several like cases. The difference between the two cases mentioned, and the present case, is this: here the damages accrued at the time of the defendant’s default. In the cases mentioned, and supposed to be analagous, no damages accrued, (except perhaps nominal in the case of the servant,) until the loss of service took place, or the limb was broken. The same answer may be given to several other cases put upon the argument.

I am of opinion that the defendant is entitled to judgment : but the plaintiff may amend on payment of costs.

Judgment for the defendant*