Ellis v. Kelso

Judge Duvall delivered the opinion of the court. The facts of this case are stated in the opinion reported in 10 B Monroe, 36. The case was afterwards again before this court, and a judgment which had been rendered for the appellant in-the court below was reversed upon the ground that the replication to the plea of the statute of limitations was insufficient. The cause was remanded, and a third trial resulted in a verdict and judgment for Kelso, to reverse which Ellis has appealed. The entry upon the books of the appellant, charged to have been either fraudulently or negligently made by the appellee, is dated the 10th of April, 1843, and the fact that the entry was made on that day is not questioned. This action being an action on the case to recover against the appellee the damages alledged to have been sustained by the appellant, by reason of the fraudulent'or negligent act complained of, was commenced the 30th of December, 1848. Upon the last trial the court, at the instance of the appellee, gave to the jury the following instruction: “That ‘ the cause of action, if any, accrued to plaintiff at ‘ the date of the entry on the cash book of Ellis and ‘ Gatewood, and if that was more than five years ‘ before this suit was brought, the law is for defend- ‘ ant.” 1. Limitation at law begins to run from the perpetration of the fraud; in chancery, from the discovery thereof. (Pyle as. Beelcmtk, 1J. J. Marsh. 445.) 2. Upon the sale of a slave by one without title and without warranty, right of action accrues,and limitation begins to run from the day of sale. (Scott vs. Scott, 8 Mar. 218.) The propriety of that instruction is the only material question presented by this appeal. For the appellant, it is insisted, that his cause of action accrued, not at the time the fraudulent or negligent act was committed, as evidenced by the entry on the cash book, but at the time Hurt elected to hold the firm of Ellis and Gatewood responsible, by suit, for the misappropriation of the $200; that until then the firm had sustained no injury from the act of their clerk, and that therefore they had, until then, no cause of action against him. We are not aware that this question has ever been directly decided by this court. It has been repeatedly held, however, that at law, limitation begins to run from the perpetuation of the fraud; in chancery, from the discovery of it. (Pyle vs. Beckwith, 1 J. J. Mar. 445.) And in the case of Scott vs. Scott, 2 Mar. 218, it was held, that on the sale of a slave by one having no title, without warranty, a right of action accrues upon the sale, and the purchaser need not wait for a recovery to be had by the proper owner before sueing the vendor; and limitation begins to run from the day of the sale. In the case of Bank of Utica vs. Childe, 6 Cowen, 238, it is said, that the rule seems now to be settled, that in actions against attorneys and others, sustaining similar relations towards their employers, for negligence in the execution of their trusts, the cause of action ai’ises immediately on the happening of the default. And in a late case in the King’s Bench, where the action was grounded on the negligence of the attorney, it was held that the statute runs from the time the party was guilty of the negligence, and not from the time when the special damage accrued. (Howard vs. Young, B. and C. 259.) The same principle was adhered to in McKerras vs. Gardner, 3 Johnson, 187. In that case the defendant had agreed to remove his goods from a warehouse in May, 1803, but neglected to do so, in consequence of which the plaintiff, in 1806, was obliged to pay damages to the [301] person to whom he had sold it. The cause of action, it was held, accrued when the defendant neglected to remove the goods, in 1803, and not when the plaintiff was obliged to pay damages, in 1806. (See also Miller vs. Adams, 16 Mass. 456; Mather vs. Green, 17 Mass. 60.) 3 A clerk makes a negligent or fraudulent entry upon the books of his employers, whereby loss accrues to them: Held, That the cause of action accrues and limifl tation begins to run from the date of the entry. (Miller vs. Adams, 16 Mass. 456; Mather vs. Green, Mass.60; Bank of XJtica vs. Ghilde,6 Com-en, 238.) So for negligence of an attorney.—• (Howard vs. Young 5 B. S¡ G. 259 ¡also, supra. Applying the principle deducible from these decisions to the case under consideration, we are of opinion that the fraudulent appropriation, or negligent disbursement, of the $200 by Kelso, occurred on the 10th April, 1843, as evidenced by the wrongful entry of that date; that the injury resulting from that act constitutes the appellants cause of action; that the injury, as well as the cause of action, accrued at that time; and that the statute of limitations then commenced running. The apparent hardship resulting from the application of this construction of the statute, to the facts of this case, is mitigated in a great degree by the consideration that the appellant has failed to .account satisfactorily, for his delay in commencing this proceeding, after his liability to Hurt had been asserted, and indeed after it had been established by a verdict and judgment, altho’ some attempt was made to explain the delay by showing that the appellee was temporarily absent from the State a short time. The judgment is therefore affirmed.