Downey v. Garard

The opinion of the Court was delivered by Lowrie, J. We regard the amendment as having been properly allowed. The statutes of 1846 and 1852 are certainly broad enough, especially under the liberal construction to which, as remedial statutes, they are entitled, to cover such professional blunders, and there are many decisions and other statutes speaking the same language: Act 24th March, 1818, s. 7: Brightly’s Purdon 19, § 2; 13 State Rep. 60; 14 Id. 69; 11 Id. 147; 6 Id. 377; 6 W. & S. 46. Our next question is, in a case where an attorney, on a process issued by him for his client, purchases bank-stock of the defendant for less than his client’s claim, and takes the title in his own name, does the statute of limitations begin to run against the client’s right to claim the purchase as a trust for him, from the date of the purchase, or does it not begin to run until the client is notified of the purchase ? The principle here involved is not different from that where an attorney collects money for his client; and on this point our decisions do not agree together; saying at one time that the statute begins to run from the collection of .the money: 1 Watts 275; 4 State Rep. 58; and at another, only from notice to the client of such collection: 7 State Rep. 31; 8 Id. 190. The statute however speaks no ambiguous language, but requires the time to count from the accruing of the action. It has been suggested that an attorney ought to be an exception to this rule; else he may gain [54] by his own negligence and even dishonesty. But when we notice that all actions on the case, including such elements as fraud, deceit, malice, conspiracy, wrongful conversion, negligence, slander, libel, nuisance, &c., are within the very terms of the statute, we do not readily perceive how mere negligence can make a case an exception, as not embraced within its spirit. It is, therefore, quite in harmony with the statute that it is decided that the limitation runs in favor of an attorney from his negligence or other breach of duty, and not merely from the consequences or discovery of it: 6 Eng. C. L. R. 25, 158; 11 Id, 219; 4 Pet. 172; 4 Alab. 493; 2 McMullan 171; and more especially that it runs from the date of money collected: 15 Wend. 302; 1 Rand. 284; unless the collection be fraudulently concealed: 5 Eng. 228; though to save him from costs and annoyance, he is not liable to an action until demand, or notice to remit: 5 Cowen 376. And so also it is when a sheriff collects money: 9 State Rep. 120 ; 9 Geor. R. 413; or defectively executes a writ; 17 Mass. 60; 13 Id. 169; 16 Id. 456; 8 Shep. 314; 12 Id. 308; and if he takes insufficient bail, the statute runs from the time when action would have accrued against the bail: 9 Met. 564; 12 Mass. 127. And so it runs in favor of officers generally, from the breach of duty complained of: 6 Cowen 238 ; 6 Hare 386; and in favor of agents generally from the collection of money ; 1 W. & S. 112; 1 Gill 234; 2 Richardson 133; and from the breach of duty; 1 Sand. S. C. R. 98; 2 Strob. 344; 4 Strob. Eq. 207. If the statute protects official and private agents alike in such cases, it is not easy to see why attorneys should be an exception. They are just as liable as other men to lose receipts and other vouchers, and notice that a claim has been collected ought to be presumed on the same time that satisfaction is presumed. And if negligence cannot be complained of after six years, how can negligence in giving notice of the collection be set up as a bar to the running of the statute ? And the plaintiff’s case is not aided by the attempt to place it on the ground that the defendant became his trustee of the stock. He was not so until the plaintiff elected to take the stock instead of the price at which it was sold. And if it was, it was not one of those trusts that is peculiarly cognisable in equity, and therefore, as it relates to personal property, it is within the six years’ limitation : 1 Watts 275; 1 W. & Ser. 118; 16 Ser. & R. 379; 7 State Rep. 31. We think, therefore, that the Court was in error in not affirming the defendant’s tenth point. Judgment reversed and a new trial awarded. Black, C. J., dissented.