tion it is urged that no priority existed | Garr v. Clements, 4 N. D. 559, at pages 562, before 1890, or during the interval from 563, 62 N. W. 640. January 1, 1896 to 1907. If appellant's There the statute was upheld as not by basis of exclusion from common law by the retrospective operation according to its statute of every subject touched upon by provisions abrogating obligation of constatute is accepted, this rule would be ap- tracts, because at common law, in the abplicable. But, the civil statutes being but sence of the statutory priority by statutes continuations of the prior common law, to of 1890, priority existed under the terribe construed therewith, the fact that a stat-torial Code of 1877: "An unbroken line of ute declares one incident of the common authority, a settled rule of the common law on the subject does not of itself and law, sound principle, and a due regard for alone signify an exclusion of all other com- business convenience, all join to sustain this mon law touching rights on which the statute." statute is silent. Nearly all the substan- The same reasons sustain our holding of tive law as contained in our Civil Code a common-law priority of artisans' liens in is but declaratory of established and prior 1906 when appellant's contract lien became existing common law, a fact which of it- effective. Our statute of 1907 is not, thereself establishes such legislation to be need fore, retrospective in operation as to apless, except to render the same accessible pellant's contract rights in the priority. and easy of reference, the principle bene- Neither does Duncan v. Great Northern R. fit of our codification of a small portion Co. 17 N. D. 610, 19 L.R.A. (N.S.) 952, 118 of common-law principles. Appellant in- N. W. 826, hold contrary to our conclusists that the general statute as to priority sions. Instead it recognizes that an exof liens (§ 6138, Rev. Codes 1905, Comp.emption from liability may arise to exLaws 1913, § 6714, first found as § 1711, onerate a common carrier as to goods reCivil Code of 1877), declaring that, "other ceived for transportation in other instances things being equal, different licns upon the than those declared by § 5690, Rev. Codes same property have priority according to 1905, Comp. Laws 1913, § 6253, and in dothe time of their creation," here controls ing so resort to common-law principles is to exclude any common-law priority. This approved. In addition to the express condistatute is but another principle of the comtions enumerated in the statute as exonermon law codified. By its terms only when ating the carrier, the court says: "Where "other things being equal" is it applicable. the shipper interferes with the property aftThe exception made is to exempt from its er accepted by the railway company, and the application instances, as here, where other loss is occasioned by such interference, it things are not equal, in that the lien may well be contended that the carrier is recognized by statute has a common-law also relieved." origin. Adjudications on statutory liens The court there divided on whether the are in no wise applicable. Hence Moher statute in question was intended as a comv. Rasmusson, 12 N. D. 71, 95 N. W. 152, plete codification or in part a departure concerning a purely statutory thresher's from the common law, in effect thereby reclien, is not in point, and the same is true ognizing the necessity of the construction of with First Nat. Bank v. Scott, 7 N. D. the statute in the light of the common law 312, 75 N. W. 254, as to an agister's stat- as to the carrier's liability. The case is to utory lien. Manifestly a lien, dependent such extent authority against appellant's solely on the statute for its creation and contention. Nor are the South Dakota priority, is measured in such respects by holdings of Banbury v. Sherin, 4 S. D. 88, the enactment as its source and definitive 55 N. W. 724, and McClain v. Williams, 11 of rights thereunder. This distinction has S. D. 227, 49 L.R.A. 610, 74 Am. St. Rep. already been made between statutory and 791, 76 N. W. 930, contrary to principles common-law liens in our decisions. Lavin here announced. These holdings are that v. Bradley, 1 N. D. 291, at page 296, 47 the statutes under consideration there covN. W. 384, where the following is found:ered the case and thereby excluded the com"In construing the seed lien statute, the

fact must not be overlooked that the lien

given is wholly statutory in its nature and origin. It was unknown at common law, and hence can neither be acquired nor enforced unless there has been substantial compliance with the act of the legislature from which the lien arises;" quoted in Parker v. First Nat. Bank, 3 N. D. 87, 54 N. W. 313, and distinguished again in

mon-law contentions urged, and in the last case it was held also that, if the ambiguous statute under construction be consid

ered supplemented by the common law as to rights of third persons under consideration,

the whole statute itself would be void as unconstitutional, and hence such an interpretation was adopted as would uphold the statute, and it was held not to cover the property of third persons. This was remarked as an aid or added reason for that

Ε

(February 6, 1915.)

XCEPTIONS by plaintiff to a ruling of the County Court for Essex County made during the trial of an action brought to recover damages for failure to return an attachment, sustaining defendant's demurrer to plaintiff's replication. Overruled.

The facts are stated in the opinion. Messrs. Carney & Blake for plaintiff. Messrs. C. R. Powell, and Simonds, Searles & Graves, for defendant:

An action upon the case, for the negligence or misconduct of an officer, lies immediately, as for suffering an escape, neglecting to arrest the debtor, to attach his goods, or to return the writ.

It is a defense to a failure to serve an attachment that the property is under seizure by prior attachment, sufficient in amount to absorb the proceeds or is otherwise encumbered to its full value.

Smith v. Heineman, 118 Ala. 195, 72 Am. St. Rep. 150, 24 So. 364; Phelps, D. & P. Co. v. Skinner, 63 Kan. 364, 65 Pac. 667.

Taylor, J., delivered the opinion of the court:

This is an action on the case against the defendant as sheriff of Essex county for the default of one of his deputies in failing to make return on a writ of attachment sued out by the plaintiff against one Norcross. As appears from the declaration, the writ was an ordinary writ of attachment issued January 2, 1909, and returnable to Essex county court within twenty-one days from the date thereof. The writ was delivered to defendant's deputy for service on the day of issue, and was served by him by attaching, as the property of said Norcross, certain bank stock and all of said Norcross's real estate in Brighton. The property attached was of sufficient value to secure the plaintiff's claim. Service of the writ was completed by giving said Norcross the required notice; but said deputy did not make return of the writ as commanded, and the same was never returned into court, whereby the plaintiff lost the benefit of said attachment. After the attachment on plaintiff's writ, and before the return day thereof, the same property was attached in the suit of one Clara A. Robinson against said Norcross, and later sold on execution to satisfy a judgment in her favor.

The defendant pleaded the general issue Plaintiff reand statute of limitations. plied to the latter plea that he (plaintiff) was a subsequent attaching creditor; that all of the real estate attached on his writ against Norcross was subject to a prior Miller v. Adams, 16 Mass. 455; Lambert attachment for more than its full value on v. McKenzie, 135 Cal. 100, 67 Pac. 6; Peck a writ in favor of one Hattie Willard v. Hurlburt, 46 Barb. 559; Betts v. Norris, against said Norcross; that said prior at21 Me. 314, 38 Am. Dec. 264; Hall v. Tom-tachment remained in force until February linson, 5 Vt. 228; Bell v. Roberts, 13 Vt. 582; McKay v. Coolidge, 218 Mass. 65, 52 L.R.A. (N.S.) 701, 105 N. E. 455; Bank of Hartford County v. Waterman, 26 Conn. 324; Lycoming F. Ins. Co. v. Batcheller, 62 Vt. 148, 19 Atl. 982.

12, 1913, when the suit of Willard v. Norcross, 86 Vt. 426, 85 Atl. 904, was ended by a final judgment for the defendant; that as soon as he learned of defendant's default he sued out a new writ, and caused all of said real estate to be attached thereon, but, said attachment being subsequent to that of said Willard, he was by law precluded from levying any execution upon said real estate until the termination of the suit of said Willard; that said Norcross had no other property from which an execution could have been satisfied; and so the plaintiff says he was not damaged,

and had no cause of action, until the termination of said suit of Willard v. Nor

cross.

The defendant demurred to the replica tion, and the county court sustained the demurrer, and adjudged the replication insufficient. An exception was allowed to the plaintiff, and the cause passed to this court before trial. The only question argued here relates to the time when the plaintiff's cause of action accrued. As a bar to the action the defendant relies upon Pub. Stat. 1556, which provides: "Actions against sheriffs for the misconduct or negligence of their deputies shall be commenced within four years after the cause of action accrues, and not after."

This suit was commenced January 16, 1914, more than four years after the alleged default, and so is barred unless, as the plaintiff contends, the cause of action did not accrue until the termination of the suit of Willard v. Norcross on February 12, 1913, when the real estate was released from the prior attachment.

that six years from the time of the defendant's misfeasance. The plaintiff's claim was that her cause of action did not accrue, or was not complete, until the recovery had against her in the action of ejectment. The court held that the defendant neglected his duty when he failed to make a sufficient levy and return on the execution, and that the cause of action was completed against him at that time; that the insufficiency of the levy to pass title to the plaintiff and the illegality of the defendant's proceedings were then as apparent as they are now; that she was under no necessity of waiting until the validity of the levy was tried in the action of ejectment, but might commence her suit immediately; and that the action was barred by the statute. In Bell v. Roberts, 13 Vt. 582, the plaintiff sued the defendant as sheriff for the negligence of one of his deputies in making a defective levy of an execution in favor of the plaintiff. The defect in title due to the misfeasance of the deputy had been cured, while the acIt must be admitted that the particular tion was pending, by the lapse of time unwrongdoing from which the plaintiff's in-der the statute then in force for quieting jury accrued was the failure of the deputy |title. The trial court directed a verdict to return the writ. The plaintiff's claim for the defendant. In reversing the judg is that, though the nonfeasance did then take place, the injury was consequential, and did not arise until the prior attachment was dissolved by a final judgment in favor of Norcross in that suit. His claim in its last analysis comes to this: That the neglect of the defendant's deputy was in itself innocent in a legal sense, but that consequential injury accrued to him therefrom; in other words, his contention is that the consequential injury, and not the officer's nonfeasance, furnishes the basis of the action. But such is not the case alleged in the declaration. It will be noted that the gravamen of the action-the grievance complained of—is the deputy's failure to return the attachment writ, and it is not suggested in argument that the declaration is framed as an action on the case for consequential damages.

The question is not wholly new in this state, although it has arisen hitherto on default of an officer in service of final process; but, in general, the same liabilities attach to an officer in serving mesne process (note in 95 Am. St. Rep. 105, and cases cited), and no apparent reason exists for a different rule as to the time when an action accrues for default of official duty in one case than in the other. In Hall v. Tomlinson, 5 Vt. 228, the action was for insufficient return of an execution. The plaintiff had been ejected from land acquired through a defective levy made by the defendant, after the expiration of more

ment this court held that the action accrued against the sheriff immediately on the breach of duty by his deputy; that under the statute the creditor must be at the expense of taking proceedings in court to correct the levy, or must lay out the use of the land two years, that his title might become quieted; that the neglect of the officer was not damnum absque injuria; and that the plaintiff was entitled to recover whatever damages he suffered from the breach of the officer's duty.

These cases are in line with the general rule, supported by the decided weight of authority, that the breach of duty by a public officer which directly affects the rights of an individual gives rise at once to a right of action, even though the entire extent of the injury may not be discovered until later. McKay V. Coolidge, 218 Mass. 65, 52 L.R.A. (N.S.) 701, 105 N. E. 455; Wilcox v. Plummer, 4 Pet. 172, 7 L. ed. 821; Betts v. Norris, 21 Me. 314, 38 Am. Dec. 264; Owen v. Western Sav. Bank, 97 Pa. 47, 39 Am. Rep. 794; Kerns v. Schoonmaker, 4 Ohio, 331, 22 Am. Dec. 757; Cæsar v. Bradford, 13 Mass. 169; Miller v. Adams, 16 Mass. 456; Peck v. Hurlburt, 46 Barb. 559.

Wilcox v. Plummer and Betts v. Norris are leading cases on this question. The former case was presented by distinguished counsel, Wirt arguing for the plaintiff, and Webster for the defendant. The suit was to recover for a loss sustained by rea

son of the neglect of defendants' testator | different question, which necessitates the while acting as an attorney at law. A adoption of a very different rule in regard promissory note was placed in his hands to the running of the statute. But in infor collection. Through his negligence, stances where there is no fraud, causes of which need not be detailed, the plaintiff action or official or professional negligence lost the proceeds of the note. The only arise at the time of the breach of duty, question in the case was whether the stat- not when the consequential damages are ute of limitation ran from the time of the felt." attorney's neglect, in which case the action would be barred, or from the time that the damage developed or became definite, which was within the statutory period. The court said that the question was not then (1830) an open one, and held that it was not a case of consequential damages in the technical acceptation of those terms; that the question was when might the action have been instituted, saying that it might have been sustained immediately; and that the action was therefore barred by the statute of limitations. Speaking of the uncertainty as to the matter of damages when the action is commenced immediately, the court said: "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."

Betts v. Norris was an action for the nonfeasance of a deputy sheriff in not attaching sufficient property on mesne process. The defendant relied upon the statute of limitations. The action was commenced more than the statutory period after the alleged nonfeasance, but within the time after the return of the execution in the attachment suit unsatisfied. The plaintiff claimed, as in this case, that the cause of action did not accrue at the time of the of ficer's default. In a carefully reasoned opinion that leaves little further to be said by way of argument, the court held that the cause of action accrued, on the return of the writ, and that no substantive cause of action could be considered as having arisen thereafter.

Mr. Freeman, in his note to Betts v. Norris, 38 Am. Dec. 270, in which he cites many cases, says: "The rule of law, now well recognized, is that, in cases of official or professional nonfeasance or misfeasance, the cause of action accrues at the time of such misconduct, and the statute of limitations then begins to run, and not from the time of the consequential injury."

He qualifies this by saying: "Of course, this doctrine can be applied only in the absence of any attempted concealment of the party's misconduct. Fraudulently keeping the facts from the knowledge of the injured person introduces an entirely

The rule that the nonfeasance or misfeasance of a public officer, and not the resulting damage, constitutes the cause of action, has long been the law of England. It is said in Wilcox v. Plummer, that this was ruled as early as the twentieth year of Elizabeth in Norwich v. Bradshaw, Cro. Eliz. pt. 1, p. 53. See also Ravenscroft v. Eyles, 2 Wils. 294; Godding v. Ferris, 2 H. Bl. 14, 3 Revised Rep. 339; Battley v. Faulkner, 3 Barn. & Ald. 288; Granger v. George, 5 Barn. & C. 149, 7 Dowl. & R. 729, 29 Revised Rep. 196, 16 Eng. Rul. Cas. 215. So far as has come to our attention, the rule is applied throughout the United States, excepting in Connecticut, Colorado, and Tennessee. It was held in Bank of Hartford County v. Waterman, 26 Conn. 324, and followed by People v. Cramer, 15 Colo. 155, 25 Pac. 302, both considerably relied upon by the plaintiff, that no legal wrong exists in case of official misfeasance until the damnifying consequences of the wrong are felt, and so that the statute of limitations does not begin to run until the resulting damages accrued, upon the theory that nonperformance of an official duty is not necessarily a legal injury. The court reasoned that, the duty violated being primarily a duty to the public, it was only when its consequences are the invasion of an individual right that it becomes a proper subject of redress by the injured party. The court recognized the prevailing rule when it said: "Whenever the injury, however slight, is complete at the time of the act, the statutory period commences," but held for that case that the wrong complained of was not in itself enough to constitute a cause of action, and that no right to sue became lodged in the plaintiff until a certain consequence resulted from the breach of duty by the officer.

In People v. Cramer it was held that the creditor's right was the judicial collection of his debt, or enforcement of such other legal redress as the law may authorize, and that, if the negligence or misconduct of the officer in no way prevents or retards the vindication of this right, no legal injury exists, and no right of action accrues. It would follow that, if the misconduct hindered the vindication of the right, legal injury would exist, and a right of action therefor accrue.

While the results reached in these cases | tainment of the actual damage is but an inmay not accord with the decisions else- cident of the right of action. The consewhere, we apprehend that the departure quences in such a case are merely aggrais not due so much to divergent views of vating circumstances enhancing the damgeneral principles as to their application ages of a legal injury already suffered. In to the case in hand. The prevailing rule this regard it is not unlike the case of recognizes a distinction between official future or special damage arising from asmisconduct which directly affects the rights sault and battery or other tortious act. In of others, and conduct that is harmless in a all such cases the damage is a result, and legal sense unless and until certain contin- not a cause. It might be found convenient gencies arise. In the former, the cause of to continue the case until it could be asaction is at once complete, involving pos- certained to what extent the plaintiff has sibly consequential damages; while in the been injured by the owner's wrongdoing, but latter it is the injury itself that is con- because, until this has been done, it might sequential. The disagreeing cases are ap- be inconvenient to establish the damages, parently ruled as belonging to the latter could form no ground to question the plainclass. State use of Cardin v. McClellan, tiff's cause of action. 113 Tenn. 616, 85 S. W. 267, 3 Ann. Cas. 992, follows the doctrine of Bank of Hartford County v. Waterman.

The

As indicated by Mr. Freeman in the note quoted above, the rule that the statute of limitations begins to run, as a general rule, from the act done, is subject to the exception that it does not run in favor of a defendant who, by fraudulent practices, has kept the plaintiff in ignorance of his rights, until discovery of the fraud. Notes in 55 Am. St. Rep. 516, and 99 Am. St. Rep. 248, and cases cited; Lightner Min. Co. v. Lane, 161 Cal. 689, 120 Pac. 771, Ann. Cas. 1913C, 1093.

Our own cases aside, we regard the prevailing rule as based on principle and sound reasoning, and we find nothing in plaintiff's argument to justify a departure from the early decisions of this court. The case at bar presents features not found in may of the cases, affording additional reasons for the application of the rule. duty which the deputy is alleged to have neglected was one directly and instantly affecting the rights of the plaintiff, and the default occasioned presents substantial injury. The plaintiff lost his attachment on the bank stock, which was not covered by the prior attachment, as well as the expense of instituting and prosecuting his suit up to that time. If the plaintiff had commenced this action immediately after the return day of his writ against Norcross, could the defendant have sucessfully relied upon a claim that the suit was prematurely brought, so far as damage already suffered was concerned? If not, it is apparent that the statute commenced to run from that time; for it is well settled that the cause of action ac-erty, if the debtor had attachable property crues from the time the plaintiff can first maintain a suit. Lycoming F. Ins. Co. v. Batcheller, 62 Vt. 148, 19 Atl. 982; Dawley v. Wheeler, 52 Vt. 574. The fact that the full extent of his injury was not fixed and certain, nor capable of being immediately ascertained, would not postpone his right to sue for the wrong done him, nor toll the statute of limitations. McKay v. Coolidge, 218 Mass. 65, 52 L.R.A. (N.S.) 701, 105 N. E. 455 and cases there cited.

The decisions of this court cited by the plaintiff are in accord with the views herein expressed. Hill v. Pratt, 29 Vt. 119, does not hold, as claimed, that the cause of action depends upon there being nothing forthcoming to satisfy plaintiff's claim at the time of execution. That was an action for failure to attach property as commanded. It appeared that at the time the writ was served the debtor had attached property, which fact the officer could have discovered in the exercise of reasonable diligence; but at the time of judgment the debtor had become insolvent, and the debt valueless. The court held that, in the circumstances, it was the duty of the officer to secure the debt by attachment of prop

Whatever difficulty there is arises from the uncertainty as to the full extent of the plaintiff's damages until the happening of subsequent contingencies, but, as said in Betts v. Norris, the right of action exists apart from such contingencies. The ascer

in its possession which might with reasonable diligence have been attached, and that for neglect in that matter the defendant was liable for the damages sustained. It was also held that it was not necessary to issue execution on the judgment to fix the officer's liability, as the officer was not charged with neglect in not keeping the property attached to be applied on the execution, but the ground of complaint was his neglect in not making any attachment. The effect of this holding is that the liability of the officer did not depend upon subsequent contingencies.

Briggs v. Taylor, 35 Vt. 57, was an action against the defendant as sheriff for the neglect of a deputy in the case of prop