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U.S. Supreme Court

Wilcox v. Executors of Plummer, 29 U.S. 4 Pet. 172 172 (1830)

Wilcox v. Executors of Plummer

29 U.S. (4 Pet.) 172


Action of assumpsit to recover from the defendant, in the character of an attorney at law, the amount of a loss sustained by reason of neglect or unskillful conduct.

A promissory note was by the plaintiff placed in the hands of P. for collection. He instituted a suit in the state court thereon against the drawer on 7 May, 1820, but neglected to do so against the endorser. The drawer proved insolvent. On 8 February, 1821, he sued the endorser, but committed a fatal mistake by a misnomer of the plaintiffs, upon which, after passing through the successive courts of the state, a judgment of nonsuit was finally rendered against the plaintiffs. Before that time, the action against the endorser was barred by the statute of limitations, to-wit on 9 November, 1822. This suit was instituted on 27 January, 1825. The statute of limitations of North Carolina interposes a bar to actions of assumpsit after three years.

The questions in the case were whether the statute of limitations commenced running when the error was committed in the commencement of the action against the endorser or whether it commenced from the time the actual damage was sustained by the plaintiffs by the judgment of nonsuit -- whether the statute runs from the time the action accrued, or from the time that the damage was developed or be came definite. Held that the statute began to run from the time of committing the error by the misnomer in the action against the endorser.

The ground of action here is a contract to act diligently and skillfully, and both the contract and the breach of it admit of a definite assignment of date. When might this action have been brought is the question, for from that time the statute must run.

When the attorney was chargeable with negligence or unskillfulness, 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 that the damage is not the cause of the action.

This was an action of assumpsit, to which was pleaded the statute of limitations.

It was alleged, and proof offered, that on 28 January, 1820, the testator of the defendants, who was a collecting chanrobles.com-red

Page 29 U. S. 173

attorney accustomed to collect for John V. Wilcox & Company, received from them for collection a note which had been drawn by Edmund Banks on 2 October, 1819, payable to John Hawkins two months after date and by him endorsed, on 9 November, 1819, to Hinton & Brame, and by them subsequently to the plaintiffs.

On 7 February, 1820, the testator, Kemp Plummer, instituted a suit in the name of John V. Wilcox and Thomas Wilcox, who composed the firm of John V. Wilcox & Company, against Banks, and at August, 1820, recovered a judgment against him. Banks proved insolvent, and on 8 February, 1821, the testator caused a writ to be issued in the names of John V. Wilcox, Arthur Johnson, and Major Drinkherd, as co-partners in the firm and style of John V. Wilcox & Company, against Hawkins, the endorser of the note.

This action, thus instituted and docketed as a suit by John V. Wilcox & Company against John H. Hawkins was, after various delays, brought to a trial in April, 1824, when the plaintiffs were nonsuited, and this nonsuit was affirmed on an appeal to the supreme court at June term 1824.

Thereupon the present suit was instituted, viz., on 27 January, 1825, by John V. Wilcox and Thomas Wilcox, co-partners under the firm and style of John V. Wilcox & Company, against the testator of the defendants; and on his death this suit was revived against them by scire facias.

Two breaches were assigned in distinct counts by the plaintiffs in their declaration:

The first, that the testator neglected to institute any suit for them against the endorser until 9 November, 1822, on which day the remedy against the endorser was barred by statute.

The second, that he instituted and carried on for them the suit, as hereinbefore stated, against the endorser negligently and unskillfully, and before the same was terminated, the remedy against him was barred as aforesaid, as fully appears by the record.

The jury found a verdict for the plaintiffs subject to the opinion of the court on the statute of limitations. The time allowed by this statute for bringing all actions on the case chanrobles.com-red

Page 29 U. S. 174

is three years after the cause of action accrues, and not afterwards.

In the circuit court, it was contended by the defendants that on the first count of the declaration, the cause of action arose from the time when the attorney ought to have sued the endorser, which was within a reasonable time after the note was received for collection, or at all events after the failure to collect the money from the marker, and that on the second count his cause of action arose at the time of committing the blunder in the issuing of the writ in the names of the wrong plaintiffs.

It was contended by the plaintiffs that on the first count their cause of action accrued when the testator of the defendants suffered the remedy to be extinguished by a neglect to sue on or before 9 November, 1822, and on the second count when the suit unskillfully brought and prosecuted was terminated or, at all events, on 9 November, 1822.

It was agreed that if the positions taken on the part of the defendants be correct on both counts, then a judgment is to be entered for the defendants.

If those taken by the plaintiffs be correct, then a judgment is to be entered for the plaintiffs on both counts; or if either of the positions thus taken by the plaintiffs be correct, then a judgment to be entered for the plaintiffs on the count wherein the statute ought not to bar.

On which questions the judges divided in opinion, and directed the difference to be certified to the supreme court. chanrobles.com-red

Page 29 U. S. 180


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