it authorizes that to be done which is "necessary and proper for the well ordering and interests of the owners and proprietors.' These terms fully comprehend the power, and authorized the doing of that which would save the property from sale under the State law. The defendant set up a title under a tax sale. which was made by the company incorporated for the management of said lands. This company was first incorporated by the Connecticut Legislature in the year 1796. No person is named in the act, but the corporators It is objected that the assessment is void for are designated as The proprietors of the half uncertainty, being in part for undefined pur-million of acres of land lying south of Lake poses. It was for the Ohio tax, and other Erie." Under this law the corporation was necessary expenses for the good of the pro- organized. In 1797 the Connecticut Legis prietors of the land. While it is admitted that lature passed an amendment to this law. it ought to have mentioned the objects, it is denied that it was required that they should be specified. Were they for the general interests and for the general good? This has not been denied. In the Act of Incorporation there is no res ervation in favor of minors. In the general law, minors are allowed to redeem in a year after attaining adult years. In what manner? Not by treating the sale as void, but by paying the tax, interest and penalties, and for the improvements. These requisites suppose the sale valid. *On the 15th of April, 1803, the Leg- [*165 islature of Ohio passed an act incorporating those owners and proprietors by the name of "The proprietors of the half million of acres of land lying south of Lake Erie, called sufferers' land;" and by that name gave succession to them, their heirs and assigns. This was called the sufferers' land, from the circumstance of its having been given by the State of Connecticut to indemnify the losses its citizens had sustained in the Revolutionary War. The Act of Incorporation by the Legislature But the question before the court is one of of Ohio required nine directors to be appointed, power, not of policy. The omission of the who were authorized to hold their meetings Legislature to make a politic provision concern-out of the State. In the second section power ing the rights of minors, does not deny the right; on the contrary, it admits the power. It cannot be maintained that this affects the validity of the sale. All the incapacities, and all the privileges of minors are the mere creat ures of municipal law. The state of minority itself is created and regulated by that law, and the period of its duration varies in different States. 164*] *The Act of Incorporation of Ohio operated upon adults and on minors alike. No distinction is made in respect to their rights. The courts cannot originate such distinction. No authorities have been adduced in support of our positions. They are supposed to rest on principles familiar to the profession. Their application to the case before the court cannot be tested by precedent, for the whole case is one sui generis. The analogies illustrative of their application result more directly from the principles themselves than from adjudged cases, which can bear but remotely upon an insulated controversy. (Cited, Knowler, Douglass et al. v. Coit, 1 Ohio Rep., 519.) Mr. Justice M'LEAN delivered the opinion of the court: This was an action of ejectment, brought in the Circuit Court of Ohio, to recover possession of one thousand two hundred acres of land, parcel of two thousand four hundred acres, in what is called the Connecticut Reserve. is given to the directors to extinguish the Indian title; to survey the land into townships, or otherwise to make partition as they should or der among the owners, in proportion to the amount of loss; and amongst other things the act provided that to defray all necessary expenses of said company in purchasing and in extinguishing the Indian claim of title to the land, surveying, locating, and making partition thereof, as aforesaid, and all other necessary expenses of said company, power be, and the same is hereby given to, and vested in the said directors and their successors in office, to levy a tax or taxes (two-thirds of the directors present agreeing thereto) on said land, and have power to enforce the collection thereof." The ninth section provides that all sales of rights, or parts of rights, of any owner or proprietor in said half million acres of land, made by the collector, shall be good and valid, so as to secure an absolute title in the purchaser; unless the said owner and proprietor shall redeem the same within six calendar months next after the sale thereof, by paying the taxes for which the said right or rights, or parts thereof, had been sold, with twelve per cent. interest thereon, and costs of suit." The act contains no provision in favor of the rights of infants or femes covert. By the tenth section of this law it is provided, that said directors shall have power and authority, and the same is hereby given to On the trial below, it was agreed that Jona- them and their successors, to do whatever shall than Douglass, the ancestor of the plaintiff's les- to them appear necessary and proper to be done sors, became proprietor of the premises in ques- for the well ordering and interest of [*166 tion in May, 1792, under the laws of Connecti- said owners and proprietors, not contrary to cut granting lands to certain sufferers, and died the laws of the State." The eleventh directs the 6th of March, 1800, vested with the legal | that 'supplies of money which shall remain title, which he held in common with many in the hands of the treasurer after the Indian other proprietors, the land not being set apart title shall be extinguished and said land located or apportioned to any one of the whole. That and partition thereof made, shall be used the lessors of the plaintiff were his heirs-at-law, by said directors for the laying out and imand held as partners or tenants in common. proving the public road in said tract, as this On the trial it was proved by the plaintiff Assembly shall direct." The act is declared to below that on the 5th of May, 1808, four of the be a public one in the twelfth section. lessors were minors. An act imposing a land tax was passed held. The provision of the law of incorporation that it should be considered a public act must be regarded in courts of justice, and its enactments noticed without being specially pleaded, as would be necessary if the act were private. That a private act of incorporation cannot affect the rights of individuals who do not assent to it, and that in this respect it is considered in the light of a contract, is a position too clear to adinit of controversy. But, in the present case, this objection seems not to have been made in the court below; where proof of the assent, if necessary, might have been submitted to the jury. by the Ohio Legislature in 1806, which re- | His right descended to them, subject to the mained in force in 1808. This act required same conditions by which it was originally entry to be made of lands for taxation. A perpetual lien was imposed on the land, whether entered or not, for the amount of the tax, and minors had a right to redeem their land sold for taxes within one year after their minority expired. It appeared in proof, at the trial, that at a meeting of the directors of the company convened at the court-house in New Haven, on Thursday, the 5th of May, 1808, agreeably to a notification duly issued according to the ordinances of said directors, it was unanimously voted by six directors, being all that were present, that a tax of two cents on the pound, original loss, be assessed on the original rights or losses, in said half million acres of land, to be paid by each proprietor thereof, in proportion to each person's respective share or loss, as set in the grant of said lands made by the State of Connecticut; to be collected and paid by the several collectors to the treasurer of this company on or before the 1st of July, 1808, to defray the expenses of a tax laid by the Legisla ture of the State of Ohio, and other necessary expenses for the good of the proprietors of said land. *From the nature of the right assert- [*168 ed and the circumstances under which it was originated, this court cannot doubt that the assent of the proprietors may be fairly presumed both to the act of Connecticut and to that of Ohio. Rights have been protected and regulated under those laws, and to the provisions of the latter are the claimants indebted, in a great degree, for the present value of the remainder of the land which they still hold; and, as has been well argued, if they participate in the benefits of the law, they can set up no exemption from its penalties. The defendant gave in evidence the assessment of a tax upon the rights of the said Jonathan Douglass, the appointment of a collector, the issuing of a warrant of collection, the ad- The main question in the case is whether the vertisement of sale for taxes, the sale of a part directors have the power, under the Act of Inof the right of said Douglass, amounting to corporation, to assess a tax on each proprietor's twelve hundred acres, for taxes, to Elias Per-share to pay a tax to the State. That a corkins, who conveyed the tract to the defendant. The Circuit Court instructed the jury that the directors had no power to assess said tax, and that the infant lessors were not con167*] cluded *or bound by such assessment. To these instructions the defendant excepted. The jury found a verdict of guilty, and judg. ment was rendered thereon. A reversal of this judgment is prayed for by the plaintiff in error on the following grounds: 1. The court erred in their instruction to the jury that the directors had no legal authority to assess the tax. 2. That the minor proprietors were not bound and concluded by the assessment and sale. It is not contended in this case that this company could derive corporate powers to do any act in Ohio in relation to the sufferers' land under the statute of Connecticut. All their powers must be derived from the law of Ohio. This law, it is insisted, is a private act, not designed for public purposes, and, consequently, cannot affect the rights of any individual who did not assent to its provisions. That the provision declaring it to be a public act does not alter the principle, for the rights derived under it are of a private nature, being limited to those who have an interest in the land; and it is denied that any evidence of assent has been shown by the lessors of the plaintiff or their ancestor. Several authorities were cited as having a bearing upon the objections thus stated. The names of the sufferers are published in the Connecticut act or resolution in 1792, with the amount allowed to each as his indemnity for losses sustained. In this act is found the name of the ancestor of the lessors of the plaintiff. poration is strictly limited to the exercise of those powers which are specifically conferred on it, will not be denied. The exercise of the corporate franchise, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the Act of Incorporation. In the second section of the act, power is given to the directors to extinguish the Indian title, under the authority of the United States, when obtained; to survey and locate the land into townships, or otherwise to make partition; and to defray all necessary expenses in carrying these objects into effect; and to meet these and "all other necessary expenses of said company," the directors are authorized to levy a tax or taxes on said land, and to enforce the collection thereof. As the power to tax for the purpose of paying a tax to the State is not found among the enumerated powers of the directors, it must be derived, if it exist, under the words, "all other necessary expenses of said compa ny;" or under the tenth section, which provides that the directors shall have power to do whatever to them shall appear necessary and proper to be done for the well ordering and interest of the proprietors, not contrary to the laws of the State." In favor of this construction, it has been ingeniously argued that partition not having been made of the land it could not be entered for taxation as required by the law of the State. That the half million of acres must be entered on the duplicate of the collector as one tract, and that it would be impracticable for the collector to as [*169 certain and collect from each proprietor his just proportion of the tax. That many of the proprietors are nonresidents, and that any proportion of them being desirous of paying their part of the tax would not be discharged by do ing so; as a part of the entire tract, involving | for the passage of the act, it is stated that said their interests, would be liable to be sold for any balance of the tax which remained unpaid. Whether partition was made of the land when the directors assessed the tax does not appear, nor is it considered a fact of much importance in the case. No argument drawn from convenience can enlarge the powers of the corporation. Was the tax imposed a "neces sary expense of said company," within the meaning of the act? That these words would cover the expense of necessary agents to assess and collect a tax le gitimately imposed by the directors, is clear, and also other incidental expenses, arising from carrying into effect the powers expressly given; but do they invest the directors with a new and substantive power? If they do, how is the exercise of the power to be limited? Must it depend upon the discretion of the directors to determine all necessary expenses of the com pany. Ample provisions are found in the State law imposing a land tax for the assessment and collection of the tax. A lien is held on all the taxable land in the State, whether entered for taxation or not; and if the tax should not be paid by a time specified, the collector was authorized, after giving notice, to sell the smallest part of the tract which would bring the amount of the tax. For the convenience of nonresidents, district collectors were appointed, who were required to hold their offices at places named in the act. The collector for the district including the sufferers land held his office at Warren, within what is called the Reservation of Connecticut. The law imposing the tax operates upon the land in controversy and raises a lien, the same as on any other taxable lands in the State. It appears, therefore, that it was not the intention of the Legislature to look to the corporation for the payment of the tax assessed under the law, but to the land, as in all other 170* *cases. And if any part of the land had been sold by the State in which minors had an interest under the law, they had a right to redeem it within a year after they became of age. This is an important provision, and is not contained in the Act of Incorporation. The agents of the State were paid for their services out of the tax collected; those of the corporation by the company. It would seem, therefore, that the tax collected by the State would be less expensive to the proprietors than if collected by their own agents, and less hazardous to their rights, as the interests of minors were protected. If, therefore, the argument drawn from convenience could have any influence, it could not operate favorably to the power of the directors. The power to impose a tax on real estate, and to sell it where there is a failure to pay the tax, is a high prerogative, and should never be exercised where the right is doubtful. In the preamble of the Ohio Act of Incorporation there is a reference in the Connecticut Act, and to the cession of the reserve by that State to the Union, and a statement that it was annexed to the State of Ohio. And as a reason "half million of acres of land are now within the limits of Trumbull County in said State, and are still subject to Indian claims of title; wherefore, to enable the owners and proprietors of said half million acres of land to purchase and extinguish the Indian claim of title to the same (under the authority of the United States, when the same shall be obtained), to survey and locate the said land, and to make partition thereof to and among said owners and proprietors in proportion to the amount of losses, which is or shall be by them respectively owned," &c. These are the objects to be accomplished by the Act of Incorporation, and which could not be attained by the individual efforts of the proprietors. In the eleventh section of the act it is provided "that supplies of money which shall remain in the hands of the treasurer after the Indian title shall be extinguished and said land located and partition thereof made, shall be used by said directors for the laying out and *improving the [*171 public roads in said tract, as the Legislature should direct." From a careful inspection of the whole act, it clearly appears that the incorporation of the company was designed to enable the proprietors to accomplish specific objects, and that no more power was given than was considered necessary to attain these objects. The words "all necessary expenses of the company" cannot be so construed as to enlarge the power to tax, which is given for specific purposes. A tax to the State is not a necessary expense of the company within the meaning of the act. Such an expense can only result from the action of the company in the exercise of its corporate powers. The provision in the tenth section, that the "directors shall have power to do whatever shall appear to them to be necessary and proper to be done for the well ordering of the interest of the proprietors, not contrary to the laws of the State, was not intended to give unlimited power, but the exercise of a discretion within the scope of the authority conferred. If the words of this section are not to be restricted by the other provisions of the statute, but to be considered according to their literal import, they would vest in the directors a power over the land only limited by their discretion. They could dispose of the land and vest the proceeds in any manner which they might suppose would advance the interest of the proprietors. It is only necessary to state this conse quence to show the danger of such a construction. The restrictions imposed in other parts of the statute very clearly demonstrate that it was not the intention of the Legislature to invest the directors with such a power. Upon a full view of the various provisions of the Act of Incorporation, the court do not find a power given to the directors to assess a tax, as has been done in the case under consideration, to pay a tax to the State. The judgment of the Circuit Court must, therefore, be affirmed with costs. Aff'g 1 McLean, 41. Cited-5 Pet., 666, 672; 10 Pet., 380 (n); 11 Pet. 546 559; 6 How., 319; 18 How., 354; McAl., 375; 3 Wood. & M., 112; 5 Bank. Reg., 105; 4 Biss., 41. 172*] *JOHN V. WILCOX AND THOMAS | tator caused a writ to be issued in the names of WILCOX v. THE EXECUTORS OF KEMP PLUMMER. Assumpsit-malpractice by an attorney-when statute of limitation began to run. 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 the 7th of May, 1820, but neglected to do so against the indorser. The drawer proved insolvent. On the 8th of February, 1821, he sued the indorser, but committed a fatal inistake 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. Be fore that time, the action against the indorser was barred by the statute of limitations, to wit, on the 9th of November, 1822. This suit was instituted on the 27th of January, 1825. The statute of limitations John V. Wilcox, Arthur Johnson, and Major Drinkherd, as copartners in the firm and style of John V. Wilcox & Co., against Hawkins, the indorscr of the note. This action, thus instituted and docketed as a suit by John V. Wilcox & Co. 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 the 27th of January, 1825, by John V. Wilcox and Thomas Wilcox, copartners under the firm and style of John V. Wilcox & Co., 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 instiof North Carolina interposes a bar to actions of as-tute any suit for them against the indorser un sumpsit after three years. The questions in the case were whether the statute of limitation commenced running when the error was committed in the commencement of the action against the indorser, or whether it commenced from the time the actual damage was sustained by the plaintiff's by the judgment of nousuit. Whether the statute runs from the time the action accrued, or from the time that the damage was developed or became definite. Held, that the statute began to run from the time of committing the error by the misnomer in the action against the in dorser. 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. cuit Court of the United States for the District of North Carolina. It was an action of assumpsit, to which was pleaded the statute of limitations. It was alleged, and proof offered, that on the 28th of January, 1820, the testator of the de173*]fendants, who was a collecting *attorney, accustomed to collect for John V. Wilcox & Co., received from them for collection a note which had been drawn by Edmund Banks, on the 2d of October, 1819, payable to John Hawkins two months after date, and by him indorsed, on the 9th of November, 1819, to Hinton & Brame, and by them, subsequently, to the plaintiffs. On the 7th of 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 & Co., against Banks, and in August, 1820, recovered a judgment against him. Banks proved insolvent, and on the 8th of February, 1821, the tes NOTE. -Agency. That an agent or attorney is liable to the principal for negligence or unskilful conduct, see note to Bell v. Cunningham, 3 Pet., 69. til the 9th of November, 1822, on which day the remedy against the indorser was barred by statute. The second, that he instituted and carried on for them the suit, as herein before stated, against the indorser, 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, *is three years after the cause of action [*174 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 indorser, 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 maker; and that on the second count, ting 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 the 9th of November, 1822: and on the second count, when the suit unskillfully brought and prosecuted was terminated; or, at all events, on the 9th of 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. Mr. Wirt, for the plaintiff, maintained that the positions taken by the plaintiffs in the Circuit Court were correct, and that the same should be so certified to the Circuit Court by this court. The action is against an attorney for negli gence, by which the plaintiffs lost their debt. It is admitted that an attorney is only liable for gross negligence. (2 Starkie's Evid., 133.) In all the cases it is held that the action is not maintainable until the debt is not recoverable. (Russel v. Palmer, 2 Wilson, 328; 3 Day, 390.) 175*] *It is the loss of the debt which gives the action, and where the object of the action is to recover the whole debt from the attorney, the cause of action does not arise until the debt is lost. If the plaintiff has sustained a special damage by the negligence of the attorney, which is short of the loss of the whole debt, he may have an action for such special damage; and the cause of action will arise from the date of the negligence which produces it. But, where the negligence is charged to be the cause of the loss of the whole debt, the cause of action does not arise until the negligence has continued so long as to produce that effect. Thus, in this case, it was not the negligence of one or two years which produced the loss of the debt; it was not until the continuance of this negligence for three years had raised the bar of the statute of limitations in favor of the original debtor that the loss of the debt became complete, and the cause of action for the whole debt arose against the attorney. Starkie says, in an action against an attorney for negligence, it seems that the statute runs from the time when the plaintiff was damnified, and not from the time of the negligence. If this be law, it decides the case before the court; for the plaintiff was not damnified to the extent of the demand made by this action until his right of action was extinguished against the original debtor; that is, until the bar of the statute arose to protect that debtor. (Ballantine on Limitations, 100, 101.) Now, the universal principle is that the cause of action runs from the act or omission which produces the injury. There are some modern cases which on their first aspect may seem to bear adversely on this action, but when examined with reference to this principle, and compared with the cause of action stated in this declaration, they will be found to proceed on a marked distinction between these cases and the case at bar. In the case of Short v. M'Carthy (3 Barn. & Ald., 626), the attorney had neglected to examine whether certain stock the plaintiff was about to purchase stood in the name of the seller on the books of The Bank of England. 176*] He reported *that it did, and the plaintiff purchased. The court held that the cause of action arose from the time of the neglect to make the examination, and his false report that he had done so. This was a single act, by which the mischief was done. The case of Howell v. Young. (5 Barn. & Cres., 259; 11 Eng. Com. Law Rep., 219). This is a case similar to that of Short v. M'Carthy. The attorney neglected to examine if real property was incumbered, and the statute was held to run from his neglect, which was a single act. In both those cases the injury was consummated at once by an act of negligence. And herein the cases have a strong resemblance to that of Hilson v. Boddington (11 Com. Law Rep., 223), cited by Holroyd, Justice, in Howell v. Young. In reply to the argument for the defendant, Mr. Wirt said the question is whether, during the whole of the connection of Mr. Plummer with his clients, he had used due diligence? The distinction is between a single act of wrong and a continuing act of wrong. The first cause of action was not sufficient in itself: until its effect was fatal to the plaintiffs' interests, no suit could have been maintained. The error in the inception of the suit was a contin: uing cause of action. The principle being acknowledged that an attorney is not liable but for gross negligence, and not for every negligence-for that only which produces the injury; could an action have been brought on the failure of Mr. Plummer to institute the suit properly? This would not have been permitted. In this case, every year was a new negligence until the final loss of the plaintiffs' debt. It is suggested that the principle which in some cases makes the statute of limitations run from the time of the knowledge of the fraud or injury, will apply. Mr. Justice STORY. This principle applies only in cases of torts; and it has been expressly decided not to apply to cases of assumpsit. Mr. Webster, for the defendant. The question is whether the statute of limitations was not a sufficient bar to both counts in the declaration. *To consider them separately. The [*177 first count alleges that no suit was brought against the indorser until he was discharged by the Act of Limitations, which was on the 9th of November, 1822. Mr. Plummer received this note for collection on the 28th of January, 1820. He sued the drawer of the note, and had judgment in August, 1820, but obtained no satisfaction, the drawer having failed. Ac cording to the allegations on this count, he then delayed more than two years before he took any steps against the indorser. This was negligence clear and actionable. He should have used all reasonable diligence, and as soon as he intermitted that diligence, he was liable to an action for neglect. The cause of action against him is his omitting to sue the indorser so soon as he ought to have sued him; and the true question is, when did this cause of action arise? The plaintiff contends that this cause of action arose when the indorser was discharged by lapse of time; but this cannot be maintained. Suppose there had been no statute of limitations by which an indorser would have been discharged, would not an action have lain against Mr. Plummer for not suing him? He had a reasonable time, according to the course of the courts and the practice of the country, within which to sue the indorser; and if he did not sue within such a reasonable time, he himself was subject to a suit for negligence. He had promised to use all common diligence to collect the note. Uncommon delay was a breach of that promise and a case of action. It is not at all material to this cause of action whether the full extent of damage was then ascertained or not ascertained. It was enough that there was a cause of action. From |