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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, there. self 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 of 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 liens upon the than those declared by $ 5690, Rev. Codes same property have priority according to 1905, Comp. Laws 1913, 8 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 com- tions 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 V. 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

the statutes under consideration there corv. Bradley, 1 N. D. 291, at page 296, 47 N. W. 384, where the following is found: ered the case and thereby excluded the com“In construing the seed lien statute, the mon-law contentions urged, and in the last

case it was held also that, if the ambigufact must not be overlooked that the lien given is wholly statutory in its nature and ered supplemented by the common law as to

ous statute under construction be considorigin. It was unknown at common law, rights of third persons under consideration, and hence can neither be acquired nor en

the whole statute itself would be void as forced unless there has been substantial unconstitutional, and hence such an intercompliance with the act of the legislature pretation was adopted as would uphold the from which the lien arises ;" quoted in statute, and it was held not to cover the Parker v. First Nat. Bank, 3 N. D. 87, property of third persons.

This was re54 X. W. 313, and distinguished again in 'marked as an aid or added reason for that

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holding on an ambiguous statute. McClain It is a defense to a failure to serve an v. Williams, like Duncan v. Great Northern attachment that the property is under seiR. Co. supra, may well be considered as

zure by prior attachment, sufficient in authority inferentially contrary to appel amount to absorb the proceeds or is otherlant's contention.

wise encumbered to its full value. The petition for rehearing is denied. Smith v. Heineman, 118 Ala. 195, 72 Am.

St. Rep. 150, 24 So. 364; Phelps, D. & P. Spalding, Ch. J.:

Co. v. Skinner, 63 Kan. 364, 65 Pac. 667. I concur in denying petition for rehearing.

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

This is an action on the case against the

defendant as sheriff of Essex county for VERMONT SUPREME COURT.

the default of one of his deputies in fail

ing to make return on a writ of attachE. F. JOHNSON

ment sued out by the plaintiff against one Norcross.

As appears from the declaRICHARD BEATTIE.

ration, the writ was an ordinary writ of at

tachment issued January 2, 1909, and re- Vt. 93 Atl. 250.)

turnable to Essex county court within Limitation of actions failure to re

twenty-one days from the date thereof. turn attachment when runs.

The writ was delivered to defendant's depThe statute of limitations begins to run uty for service on the day of issue, and against an action to recover damages from was served by him by attaching, as the a sheriff for failure to return an attach- property of said Norcross, certain bank ment, when the return is due, although the stock and all of said Norcross's real estate full amount of injury cannot be ascertained in Brighton. until the release some time later of prior of suficient value to secure the plaintiff's

The property attached was liens on a portion of the property.

claim. Service of the writ was completed (February 6, 1915.)

by giving said Norcross the required no

tice; but said deputy did not make return XCEPTIONS by plaintiff to a ruling of of the writ as commanded, and the same

the County Court for Essex County was never returned into court, whereby the made during the trial of an action brought plaintiff lost the benefit of said attachment. to recover damages for failure to return an

After the attachment on plaintiff's writ, attachment, sustaining defendant's demur- and before the return day thereof, the rer to plaintiff's replication. Overruled. same property was attached in the suit The facts are stated in the opinion.

of one Clara A. Robinson against said NorMessrs. Carney & Blake for plaintiff. cross, and later sold on execution to satis

Messrs. C. R. Powell, and Simonds, fy a judgment in her favor. Searles & Graves, for defendant:

The defendant pleaded the general issue An action upon the case, for the negli and statute of limitations.

Plaintiff regence or misconduct of an officer, lies im- plied to the latter plea that he (plaintiff) mediately, as for suffering an escape, ne- ! was a subsequent attaching creditor; that glecting to arrest the debtor, to attach his all of the real estate attached on his writ goods, or to return the 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. 12, 1913, when the suit of Willard v. Nor582; McKay v. Coolidge, 218 Mass. 65, 52 cross, 86 Vt. 426, 85 Atl. 904, was ended L.R.A. (N.S.) 701, 105 N. E. 455; Bank of by a final judgment for the defendant; Hartford County v. Waterman, 26 Conn. that as soon as he learned of defendant's 324; Lycoming F. Ins. Co. v. Batcheller, default he sued out a new writ, and caused 62 Vt. 148, 19 Atl. 982,

all of said real estate to be attached there

on, but, said attachment being subsequent Note. — The general question as to when to that of said Willard, he was by law prethe statute begins to run against an action cluded from levying any execution upon by a private person based on breach of duty said real estate until the 'termination of by a public officer is considered in the note the suit of said Willard; that said Norto McKay v. Coolidge, 52 L. A. (N.S.) 701; and see especially pages 704, 707, as

cross had no other property from which an to actions growing out of breach of duty in execution could have been satisfied; and so respect of executions and attachments. the plaintiff says he was not damaged,



and had no cause of action, until the ter- that six years from the time of the mination of said suit of Willard v. Nor- defendant's misfeasance. The plaintiff's

claim was that her cause of action did not The defendant demurred to the replica- accrue, or was not complete, until the retion, and the county court sustained the covery had against her in the action of demurrer, and adjudged the replication ejectment. The court held that the de. insufficient. An exception was allowed to fendant neglected his duty when he failed the plaintiff, and the cause passed to this to make a sufficient levy and return on court before trial. The only question ar- the execution, and that the cause of action gued here relates to the time when the was completed against him at that time; plaintiff's cause of action accrued. As a that the insufficiency of the levy to pass bar to the action the defendant relies upon title to the plaintiff and the illegality of Pub. Stat. 1556, which provides: “Actions the defendant's proceedings were then as against sheriffs for the misconduct or neg apparent as they are now; that she was ligence of their deputies shall be com- under no necessity of waiting until the menced within four years after the cause validity of the levy was tried in the action of action accrues, and not after.”

of ejectment, but might commence her suit This suit was commenced January 16, immediately; and that the action was 1914, more than four years after the al barred by the statute. In Bell v. Roberts, leged default, and so is barred unless, as 13 Vt. 582, the plaintiff sued the defendant the plaintiff contends, the cause of action as sheriff for the negligence of one of his did not accrue until the termination of the deputies in making a defective levy of an suit of Willard v. Norcross on February 12, execution in favor of the plaintiff. The 1913, when the real estate was released defect in title due to the misfeasance of from the prior attachment.

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 ment this court held that the action actake place, the injury was consequential, crued against the sheriff immediately on and did not arise until the prior attach- the breach of duty by his deputy; that unment was dissolved by a final judgment in der the statute the creditor must be at favor of Norcross in that suit. His claim the expense of taking proceedings in court in its last analysis comes to this: That to correct the levy, or must lay out the the neglect of the defendant's deputy was use of the land two years, that his title in itself innocent in a legal sense, but that might become quieted; that the neglect consequential injury accrued to him there of the officer was not damnum absque infrom; in other words, his contention is juria; and that the plaintiff was entitled that the consequential injury, and not the to recover whatever damages he suffered officer’s non feasance, furnishes the basis from the breach of the officer's duty. of the action. But such is not the case al- These cases are in line with the general leged in the declaration. It will be noted rule, supported by the decided weight of authat the gravamen of the action-the griev. thority, that the breach of duty by a pubance complained of—is the deputy's failure lic oflicer which directly affects the rights to return the attachment writ, and it is of an individual gives rise at once to a not suggested in argument that the decla- right of action, even though the entire exration is framed as an action on the case tent of the injury may not be discovered for consequential damages.

until later. McKay v. Coolidge, 218 The question is not wholly new in this Mass. 65, 52 L.R.A. (N.S.) 701, 105 N. E. state, although it has arisen hitherto on de- 455; Wilcox v. Plummer, 4 Pet. 172, 7 L. fault of an officer in service of final pro- ed. 821; Betts v. Norris, 21 Me. 314, 38 cess; but, in general, the same liabilities Am. Dec. 264; Owen v. Western Sav. Bank, attach to an officer in serving mesne pro- 97 Pa. 47, 39 Am. Rep. 794; Kerns v. cess (note in 95 Am. St. Rep. 105, and Schoonmaker, 4 Ohio, 331, 22 Am. Dec. cases cited), and no apparent reason exists 757 ; Cæsar v. Bradford, 13 Mass. 169; for a different rule as to the time when an Miller V. Adams, 16 Mass. 456; Peck v. action accrues for default of official duty Hurlburt, 46 Barb. 559. in one case than in the other. In Hall v. Wilcox v. Plummer and Betts v. Norris Tomlinson, 5 Vt. 228, the action was for are leading cases on this question. The insufficient return of an execution. The former case was presented by distinguished plaintiff had been ejected from land accounsel, Wirt arguing for the plaintiff, quired through a defective levy made by and Webster for the defendant. The suit the defendant, after the expiration of more was to recover for a loss sustained by rea

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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 The rule that the nonfeasance or miswould be barred, or from the time that the feasance of a public officer, and not the damage developed or became definite, which resulting damage, constitutes the cause of was within the statutory period. The court action, has long been the law of England. said that the question was not then (1830) It is said in Wilcox v. Plummer, that this an open one, and held that it was not a was ruled as early as the twentieth year case of consequential damages in the tech- of Elizabeth in Norwich v. Bradshaw, Cro. nical acceptation of those terms; that the Eliz. pt. 1, p. 53. See also Ravenscroft v. question was when might the action have Eyles, 2 Wils. 294; Godding v. Ferris, 2 been instituted, saying that it might have H. Bl. 14, 3 Revised Rep. 339; Battley v. been sustained immediately; and that the Faulkner, 3 Barn. & Ald. 288; Granger v. action was therefore barred by the statute George, 5 Barn. & C. 149, 7 Dowl. & R. 729, of limitations. Speaking of the uncertain- | 29 Revised Rep. 196, 16 Eng. Rul. Cas. 215. ty as to the matter of damages when the So far as has come to our attention, the action is commenced immediately, the court rule is applied throughout the United said: “Perhaps, in that event, no more States, excepting in Connecticut, Colorado, than nominal damages may be proved, and and Tennessee. It was held in Bank of no more recovered; but, on the other hand, Hartford County v. Waterman, 26 Conn. it is perfectly clear that the proof of ac- 324, and followed by People v. Cramer, 15 tual damage may extend to facts that oc- Colo. 155, 25 Pac. 302, both considerably cur and grow out of the injury, even up to relied upon by the plaintiff, that no legal the day of the verdict. If so, it is clear wrong exists in case of official misfeasance the damage is not the cause of action.” until the damnifying consequences of the

Betts v. Norris was an action for the wrong are felt, and so that the statute of nonfeasance of a deputy sheriff in not at- limitations does not begin to run until taching sufficient property on mesne process. the resulting damages accrued, upon the The defendant relied upon the statute of theory that non performance of an official limitations. The action was commenced duty is not necessarily a legal injury. The more than the statutory period after the al court reasoned that, the duty violated beleged nonfeasance, but within the time af- ing primarily a duty to the public, it was ter the return of the execution in the at- only when its consequences are the invatachment suit unsatisfied. The plaintiff sion of an individual right that it becomes claimed, as in this case, that the cause of a proper subject of redress by the injured action did not accrue at the time of the of- party. The court recognized the prevailficer's default. In a carefully reasoned ing rule when it said: “Whenever the inopinion that leaves little further to be jury, however slight, is complete at the said by way of argument, the court held time of the act, the statutory period comthat the cause of action accrued, on the mences,”—but held for that case that the return of the writ, and that no substantive wrong complained of was not in itself cause of action could be considered as hav- enough to constitute a cause of action, ing arisen thereafter.

and that no right to sue became lodged in Mr. Freeman, in his note to Betts v. Nor- the plaintiff until a certain consequence ris, 38 Am. Dec. 270, in which he cites resulted from the breach of duty by the many cases, says: “The rule of law, now officer. well recognized, is that, in cases of official In People v. Cramer it was held that the or professional nonfeasance or misfeasance, creditor's right was the judicial collection the cause of action accrues at the time of of his debt, or enforcement of such other such misconduct, and the statute of lim- legal redress as the law may authorize, and itations then begins to run, and not from that, if the negligence or misconduct of the the time of the consequential injury.” officer in no way prevents or retards the

He qualifies this by saying: “Of course, vindication of this right, no legal injury this doctrine can be applied only in the exists, and no right of action accrues. absence of any attempted concealment would follow that, if the misconduct hinof the party's misconduct. Fraudulently dered the vindication of the right, legal keeping the facts from the knowledge of injury would exist, and a right of action the injured person introduces an entirely 'therefor accrue.


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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. As indicated by Mr. Freeman in the note 992, follows the doctrine of Bank of Hart- quoted above, the rule that the statute of ford County v. Waterman.

limitations begins to run, as a general rule, Our own cases aside, we regard the pre- from the act done, is subject to the excepvailing rule as based on principle and tion that it does not run in favor of a desound reasoning, and we find nothing in fendant who, by fraudulent practices, has plaintiff's argument to justify a departure kept the plaintiff in ignorance of his rights, from the early decisions of this court. The until discovery of the fraud. Notes in 55 case at bar presents features not found in Am. St. Rep. 516, and 99 Am. St. Rep. 245, may of the cases, affording additional rea- and cases cited; Lightner Min. Co. v. Lane, sons for the application of the rule.

The 161 Cal. 689, 120 Pac. 771, Ann. Cas. 1913C,

1093. duty which the deputy is alleged to have neglected was one directly and instantly

The decisions of this court cited by the affecting the rights of the plaintiff, and the plaintiff are in accord with the views here

in expressed. Hill v. Pratt, 29 Vt. 119, default occasioned presents substantial in

does not hold, as claimed, that the cause of jury. The plaintiff lost his attachment action depends upon there being nothing on the bank stock, which was not cov; forthcoming to satisfy plaintiff's claim at ered by the prior attachment, as well the time of execution. That was an action as the expense of instituting and prose for failure to attach property as commandcuting his suit up to that time. If ed. It appeared that at the time the writ the plaintiff had commenced this action was served the debtor had attached propimmediately after the return day of his erty, which fact the officer could have diswrit against Norcross, could the defendant covered in the exercise of reasonable dilihave sucessfully relied upon a claim that gence; but at the time of judgment the the suit was prematurely brought, so far as debtor had become insolvent, and the debt damage already suffered was concerned ? valueless. The court held that, in the cirIf not, it is apparent that the statute com- cumstances, it was the duty of the officer menced to run from that time; for it is to secure the debt by attachment of propwell settled that the cause of action acerty, if the debtor had attachable property crues from the time the plaintiff can first in its possession which might with reasonmaintain a suit. Lycoming F. Ins. Co. v. able diligence have been attached, and that Batcheller, 62 Vt. 148, 19 Atl. 982; Dawley for neglect in that matter the defendant v. Wheeler, 52 Vt. 574. The fact that the was liable for the damages sustained. It full extent of his injury was not fixed and was also held that it was not necessary to certain, nor capable of being immediately issue execution on the judgment to fix the ascertained, would not postpone his right officer's liability, as the officer was not to sue for the wrong done him, nor toll the charged with neglect in not keeping the statute of limitations. McKay v. Coolidge, property attached to be applied on the exe218 Mass. 65, 52 L.R.A. (N.S.) 701, 105 N. E. cution, but the ground of complaint was 455 and cases there cited.

his neglect in not making any attachment. Whatever difficulty there is arises from The effect of this holding is that the liathe uncertainty as to the full extent of the bility of the officer did not depend upon plaintiff's damages until the happening of subsequent contingencies. subsequent contingencies, but, as said in Briggs v. Taylor, 35 Vt. 57, was an acBetts v. Norris, the right of action exists tion against the defendant as sheriff for apart from such contingencies. The ascer-'the neglect of a deputy in the case of prop

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