JOHN V. WILCOX AND THOMAS WILCOX

v.

THE EXECUTORS OF KEMP PLUMMER

Mr Justice Johnson delivered the opinion of the Court.

This suit wds instituted in the circuit court of the United States, in North Carolina, to recover of the defendants the amount of a loss sustained by reason of the neglect or unskilful conduct of their testator, while acting in the character of an attorney at law.

A promissory note was placed in his hands for collection, by the plaintiffs. He instituted a suit in the state court thereon, against Banks, the drawer, on the 7th of February 1820, but neglected to do so against Hawkins the indorser. Banks proved insolvent; and then, to wit, on the 8th of February 1821, he issued a writ against the indorser, out committed a fatal misnomer of the plaintiffs, upon which, after passing through the successive courts of the state, a judgment of nonsuit was-finally rendered against them.' Before that time, the action against the indorser was barred by limitation; to wit, on the 9th of November 1822, and this suit was instituted on the 27th of January I825.

The form of the action is assumpsit; and the plea now to be considered is the act of limitation, which in that state creates a bar to that action in three years.

The case is presented in a very anomalous form;' but in order to subject it to any known class of rules, we must consi derlt as coming up upon opposite bills of exceptions, craving instructions, on which the court divided. This court can only certify an opinion on the points, sq raised'; that part of the agreement stated in the record which relates to the rendering of judgment on the one side or on the other, must have its operation in the court below.

There, were two counts in the declaration :. the one laying the breach in not suing at all, until the note became barred; thus treating .as a mere nullity the suit in which the blunder was committed; and the other laying the breach in the commission of the blunder; but both placing the damages upon the barring of the note by the act of limitation. As this event happened on the 22d of November 1822, this suit is in time if the statute commenced running only from the happening of the damage. But if it commenced running either when the suit was commenced against the drawer, or a reasonable time after, or at the time of Banks’s insolvency, or at the time when the blunder was committed; in any one of those events, the three years had run out. And thus the only question in the case is, whether the statute runs from the time the action accrued, or from.the time that the damage is developed or becomes definite.

And this we hardly feel at liberty to treat as an open question.

It is not a case of consequential damages, in the technical acceptation of those terms, such as the case of Gillon vs. Boddington, 1 B. & P. 541, in which the digging near the plaintiff’s foundation was the cause of the injury; for in that instance no right or contract was violated, and by possibility the act might have proved harmless, as it would have been had the wall never fallen. Nor is it analogous to the case of a nuisance ; since the nuisance of to-day is a substantivé cause of action, and not the same with the nuisance of yesterday, any more than an assault and battery.

The groun 1 of action here, is a contract to act diligently and skilfully; and both the contract and the breach of it admit of a definite assignment of date. When might this action have been instituted, is the question: for from that time the statute must run. When the attorney was chargeable with negligence or unskil fulness, 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 the damage is not the cause of action.

This is fully illustrated by.the case from Salkeld and Modern; in which a plaintiff having previously recovered for an assault, afterwards sought indemnity for a very serious effect of the assault, which could not have been anticipated, and of consequence could not have been compensated in making up the verdict.

The cases are numerous and conclusive on this doctrine. As long ago as the 20th Eliz. 1 Croke, 53, this was one of the points ruled in the Sheriffs of Norwich vs. Bradshaw. And the case was.a strong one; for it was altogether problematical, whether the plaintiffs ever should sustain any damages from the injury. The principle has often been applied to the very plea here set up, and in.some very modern cases. That of Battley vs. Faulkner, 3 B. & A. 288, was exactly this case; for there the damage depended upon the issue of another suit, and could not be assessed by a jury until the final result of that suit was definitely known. Yet it was held, that the plaintiff should have instituted his action, and he was barred for not doing so. In the case of Short vs. M’Carthy, which was assumpsit against an attorney for neglect of duty, the plea of the statute was sustained, though the proof established that it was unknown to the plaintiff until the time had run out. And the same point is ruled in Granger vs. George, 5 B. & C. 149. In both cases the court intimating, that if suppressed by fraud, it ought to be replied to the plea, if the party, could avail himself of it. In Howell vs. Young, the same doctrine is affirmed, and the statute held to run from the time of the injury, that being the cause of action, and not from the time of damage or discovery of the injury.

The opinion of this court will have to be certified in the language of the defendants^ supposed bill of exceptions, to wit, “ that on the first count in the declaration, the cause of the action arose at 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 his cause of action arose at the time of committing the blunder in issuing the writ in the names of wrong plaintiffs.”

This cause came on to oe neard on the transcript of the record from the circuit court of the United States for the district of North Carolina, and on the points and questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this court for its opinion, in pursuance of ihe. act of congress in such case made and provided, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that it be certified, to the said circuit court of the United States, for the district of North Carolina, “ that on the' first count in the declaration, the cause of action arose at 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 at the failure to collect the money from the maker; and that on the second count his cause of action arose at the time of committing the blunder in issuing the writ in the names of wrong plaintiffs; all of which is accordingly hereby certified to the said circuit court of the United States for the district of North Carolina.