Owen v. Western Saving Fund , 97 Pa. 47 ( 1881 )

Mr. Justice Gordon

delivered the opinion of the court, January 31st 1881.

This case may be certainly and readily determined by mere attention to, and following of the language of the Act of March 27th 1713, which prescribes, inter alia, “ That all actions of account and upon the case shall be commenced, and sued within six years next after the cause of such actions and suits, and not after.” The action now in hand is “upon the case,” brought by the plaintiff against the defendant, for the recovery of damages alleged to have resulted from a false certificate of search issued by him, when recorder of deeds of the county of Philadelphia, to the plaintiff.

As fraud is not charged against the defendant, the case is not complicated by that element, and the action is founded on negligence alone. Under the statute then, the question is, "What was the cause of action, and when did it arise ? Undoubtedly the cause was the issuing the false certificate, and the right of action accrued to the plaintiff just as soon as it parted with its money on the faith it, and, as a consequence, from that period, the statute began to run. But, answers the counsel for the plaintiff, non constat, that there was at that time any special damage. This may be true; but special damage is a result, not a cause, and, as was said in Howell v. Young, 5 B. & C. 259, the gist of the action being the misconduct of the defendant, omitting wholly the allegation of special damage, the plaintiff would, nevertheless, be entitled to nominal damages. And, in this same case, it was held, that special damages, resulting from a breach of duty, do not constitute a fresh ground of action, but are merely the measure of the injury resulting from the original cause. This same doctrine was held in Wilcox v. Plummer’s Ex’rs., 4 Pet. 172, which was an action for a loss resulting from the neglect or unskilful conduct of an attorney; also in the Bank of Utica v. Childs, 6 Cowen 245, where the action was founded on the default of a notary, in not giving notice of the non-payment of a promissory note; in Miller v. Adams, 16 Mass. 456, where the suit was against a deputy-sheriff, for a breach of official duty in making a defective return to an original writ. In our own court, we have this very doctrine re-stated by our brother, Mr. Justice Sterrett, only about one year ago, in Moore v. Juvenal, 11 Norris 484, which was a suit brought to recover damages, arising from the negligence of an attorney in prosecuting a claim. To the same purpose are Campbell’s Adm’rs v. Boggs, 12 Wright 524; Downing v. Gerrard, and Miller v. Wilson, 12 Harris 52, 114. All these authorities, and many more which might be cited, only serve to illustrate that which the statute of itself makes plain enough; namely, that the commencement of the limitation is contemporaneous with the origin of the cause of action.

And we see also, from the cases cited, that the distinction which the counsel for the plaintiff has attempted to draw, between torts arising from contracts and those which arise from official misfeasance, cannot be sustained. Such a distinction is not found in the statute, and it is clearly opposed to reason; for why should a duty imposed by the legislature be obligatory, rather than one which is voluntarily assumed ? Nay, a man might the rather be excused from the performance of an obligation forced upon him, than from one which, of his own will, ho took upon himself. Indeed, the two become equal, and all distinction disappears, only, when we consider that the statutory duty is assumed as part of the office which the incumbent undertakes to fulfil. Moreover, the officer having thus assumed the duty, and being paid •therefor by the party who requires its performance, the transaction, to all intents and purposes, becomes a personal contract, as much so as though it were wholly voluntary, and not statutory.

The judgment of the court below is now reversed and set aside, and it is ordered that judgment be entered, on the case stated, for the defendant, with costs.