Statute of Limitations-Time from which it begins to run-Recorders of Deeds-Liability for giving a false certificate of search-When the statute will be a bar to an action for. In an action upon the case against a Recorder of Deeds for negligently giving a false certificate of search, where no fraud is alleged, the Statute of Limitations begins to run from the time when the search was given, and not from the discovery of its falsity. As far as the running of the statute is concerned, there is no distinction between torts arising from contract, and those which arise from official malfeasance. Error to the Common Pleas No. 3, of Philadelphia County. Case, by the Western Saving Fund Society of Philadelphia against Joshua T. Owen, late Recorder of Deeds for the city and county of Philadelphia, for negligently and carelessly certifying that there were no unsatisfied mortgages of record in his office on certain premises on Arch Street in said city. Pleas (1) Not guilty. (2) Actio non accrevit infra sex annos. The following was agreed upon as a case stated for the opinion of the Court: By indenture of mortgage, dated the 13th day of August, 1836, one Jacob S. Rose, being the owner of the property hereinafter mentioned, conveyed to Brittain Cooper in mortgage, to secure the payment of six thousand dollars in one year, with interest, certain premises described as being situated on the south side of Mulberry Street, at the distance of one hundred and forty feet west of Eleventh Street, in the city of Philadelphia, containing in front twenty feet, and extending in depth one hundred and fortyone feet. This mortgage was on the same day duly recorded at Philadelphia, in Mortgage Book S. H. F. No. 2, page 283, etc.; and by four assignments, duly recorded in the same office, the said mortgage subsequently became vested in Caspar W. Pennock. and Sassafras Street, shall be hereafter named and called respectively, South Street, Market Street, Arch Street, and Race Street." By deed dated January 2, 1855, duly recorded in the same office, the said premises became vested in Robert McGrath. In the month of November, 1867, the plaintiffs, being so requested by McGrath, agreed to loan him the sum of $12,000 on the security of a first mortgage, to be executed by him, of the premises. The plaintiffs thereupon applied to the defendant, who was the Recorder of Deeds of Philadelphia County (and whose term extended from November 29, 1866, to November 29, 1870), to certify any unsatisfied mortgages upon the premises, given by the said Jacob S. Rose, from August 1, 1836, to September 1, 1844, the said premises being described as situate on the south side of Arch Street, one hundred and forty feet west of Eleventh Street, containing in front twenty feet, and extending in depth one hundred and forty-one feet." Upon receipt of the fee demanded therefor, the defendant's clerk did, on the 4th of November, 1867, certify under the defendant's seal of office, that there were no unsatisfied mortgages of the above premises. On the faith of this certificate, the said sum of $12,000 was loaned to McGrath on the security of his supposed first mortgage, which was executed to the plaintiffs and duly recorded. The defendant's certificate was based on a search made from a private working index, compiled for the convenience of a former Recorder of Deeds, wherein the mortgagor's name appears as Jacob S. Ross. The official index, however, correctly discloses the mortgage by Jacob S. Rose. The interest upon the plaintiffs' mortgage of $12,000 was regularly paid until the year 1876, when, default being made, proceedings were instituted by the plaintiffs on the said mortgage, the premises exposed to sale, and purchased by them on the 3d of December, 1877, for $5000, and a sheriff's deed therefor duly acknowledged and delivered. After the plaintiffs had thus acquired title, they were notified by the holders of the Rose mortgage, that six months' interest thereon was unpaid. This was the first notice that the plaintiffs had of the existence of the prior mortgage. It subsequently appeared, that up to that time interest had been regularly paid upon this Rore mortgage, and its existence concealed from the plaintiffs. Proceedings were then instituted on By an ordinance of Councils of the City of the same against Jacob S. Rose, defendant, and Philadelphia, approved the 8th day of Decem- the present plaintiffs, terre-tenants, in which ber, 1853, Section 1, it is enacted, "That judgment was, on March 19, 1878, obtained for Cedar Street, High Street, Mulberry Street, $5003.20, and a levari facias issued, under VOL. IX.-30 which the premises were to he sold on the 1st Monday of May, 1878, and to avoid such sale the present plaintiffs, on the 23d day of April, 1878, paid to the attorney for the plaintiffs in such suit the sum of $5051.26. On May 4, 1878, this writ was issued, and the defendant pleaded, inter alia, the Statute of Limitations. If, upon the above facts, the Court should be of opinion that the plaintiffs are entitled to recover in this form of action, then judgment to be entered in their favor, and damages assessed at $5051.26. Otherwise, judgment to be entered for the defendant. Either party to be at liberty to take a writ of error to the judgment of the Court upon this case stated. After argument the Court entered judgment for the plaintiffs, LUDLOW, P. J., delivering the opinion (reported 8 WEEKLY NOTES, 358, q.v.). The defendant took this writ, assigning for error the entering of judgment as above. George Northrop, for the plaintiff in error. The Act of Assembly, passed March 27, 1713 (Purd. Dig. 930, 931), is as follows:"All actions of trespass, quare clausum fregit; all actions of detinue, trover, and replevin, all actions of account and upon the case, . all actions of debt without specialty,. . . . all actions of trespass, etc., shall be commenced and sued within six years next after the cause of such actions or suits, and not after." Where there is no fraud on the part of the defendant, the statute begins to run from the date of the negligence or other breach of duty, and not merely from the consequences or discovery of it. Howell v. Young, 5 Barn. & Cress. 259. Marsteller v. Marsteller, 8 WEEKLY NOTES, 553. Where there is no fraud on the part of the defendant, the statute begins to run from the time the right of action accrues without regard to the want of knowledge of such right by the plaintiff, and not from the time when the damage was developed or became definite. To make it apply to the latter is to alter the statute. The right of action accrued when the certificate was given. Howell v. Young, supra. Campbell v. Boggs, 12 Wr. 525. Where there is no fraud on the part of the defendant it does not matter whether the action is in assumpsit, debt, or case; the statute is equally a bar, and begins to run from the same period, i. e., from the time of the negligent act Battley v. Faulkner, 3 Barn. & Ald. 292. Short v. McCarthy, 3 Barn. & Ald. 626. Howell v. Young, 5 Barn. & Cress. 259. Wilcox v. Extrs. Plummer, 4 Peters, 181. Moore v. Juvenal, 7 WEEKLY NOTES, 375. The case of Hanna v. Holton (28 Sm. 338), relied on by plaintiffs, is misapplied; there was there a continuing duty down to a certain time, and the Court held that as the right of action could not accrue until the happening of that time, the statute did not begin to run until then; here there is no continuing duty, the rights of the parties being fixed at the time of the delivery of the certificate. William Henry Rawle, for the defendant in error. It is well established that "until the cause of the particular action, which the defendant sets up the statute to bar, has arisen—until the right is complete to institute that action—the statute does not begin to run." Wickersham v. Russell, I P. F. Smith, 71, 74Marsteller v. Marsteller, 8 WEEKLY NOTES, 553. Its first notice of the falsity of the certificate The defendant has been guilty of no laches. arose at the time of the sale. Until that time, it was not only without knowledge of the prior constat that it ever would be injured. For (1) encumbrance, but was, in fact, not injured. Non the owner might pay off the first mortgage. (2) He might pay off our mortgage. (3) We might assign our mortgage. (4) The property might bring enough at sheriff's sale to cover both mortgages. So that, even if, in 1867, we had discovered our position, these four contingencies would have barred our right of recovery. For to have mulcted the defendant in damages when we might never be injured, would have been most unjust. Hence the action is not for giving a false certificate, but because of injury happening by reason of its falsity, and without injury the action is not maintainable. Kimball v. Connolly, 3 Keyes, 57. Hanna v. Holton, 28 Sm. 334. The defendant below was Recorder of Deeds, and, as such, was a public official clothed with the performance of special duties, among which is giving searches to the public at large. McCaraher v. Com., 5 Watts & Serg. 26. Ziegler v. Com., 2 Jones, 227. Com. v. Harmer, 6 Phila. Rep. 90. Siewers v. Com., 6 W. N. Cases, 17. Hence, his duty being to furnish a true certificate, he is prima facie liable for damages caused by its falsity. The distinctions which underlie this case are familiar, and are based upon the difference existing between torts arising from contract, express or implied, and torts for injuries occasioned by official misfeasance. In the former line of cases the statute is held to run from the breach of the contract, as fuil damages can be immediately recovered, while, on the other hand, in actions for injuries result- | sulting from the neglect or unskilful conduct of ing from the misfeasance of public officials, the cause of action occurs when the damage is complete, and the statute runs from that time, as prior thereto the injured party has no right of redress. an attorney; also in the Bank of Utica v. Childs (6 Cowen, 245), where the action was founded on the default of a notary in not giving notice of the non-payment of a promissory note; in Miller v. Adams (16 Mass. 456), where the suit was against a deputy sheriff, for a breach of official duty in making a defective return to an original writ. In our own Court we have this very doctrine restated by our brother, Mr. Justice STERRETT, only about one year ago, in Moore v. Juvenal (8 W. N. C. 411), which was a suit brought to recover damages, arising from the negligence of an attorney in prosecuting a claim. To the same purpose are Campbell's Executors v. Boggs (12 Wr. 524), Downing v. Garard, and Miller v. Wilson (12 Har. 52 and 114). All these authorities, and many more which might be cited, only serve to illustrate that which the statute of itself makes plain enough; namely, that the commencement of the limitation is contemporaneous with the origin of the cause of action. January 31, 1881. THE Court. This case may be certainly and readily determined by mere attention to and following of the language of the And we see also, from the cases stated, that the Act of March 27, 1713, which prescribes, inter distinction, which the counsel for the plaintiff alia, "That all actions of account and upon the has attempted to draw, between torts arising case shall be commenced and sued within six from contracts and those which arise from official years next after the cause of such actions and misfeasance, cannot be sustained. Such a dissuits, and not after." The action now in hand tinction is not found in the statute, and it is is "upon the case," brought by the plaintiff clearly opposed to reason; for why should a duty against the defendant, for the recovery of dam-imposed by the Legislature be obligatory rather ages, alleged to have resulted from a false certifi- than one which is involuntarily assumed? Nay, cate of search issued by him, when Recorder of a man might the rather be excused from the perDeeds of the county of Philadelphia, to the formance of an obligation forced upon him than plaintiff. from one which, of his own will, he took upon himself. Indeed, the two become equal, and all distinction disappears, only, when we consider that the statutory duty is assumed as part of the office which incumbent undertakes to fulfil. Moreover, the officer having thus assumed the duty, and being paid therefor by the party who requires its performance, the transaction, to all intents and purposes, becomes a personal contract, as much so as though it were wholly volun The judgment of the Court below is now reversed and set aside, and it is ordered that judgment be entered, on the case stated, for the defendant, with costs. Opinion by GORDON, J. As fraud is not charged against the defendant, the case is not complicated by that element, and the action is founded on negligence alone. Under the statute then, the question is, What was the cause of action, and when did it arise? Undoubtedly the cause was the issuing the false certificate, and the right of action accrued to the plaintiff just as soon as it parted with its money on the faith of it, and, as a consequence, from that period, the statute began to run. But, an-tary, and not statutory. swers the counsel for the plaintiff, non constat, that there was at any time any special damage. This may be true; but special damage is a result, not a cause, and, as was said in Howell v. Young (5 Barn. & Cress. 259), the gist of the action being the misconduct of the defendant, omitting wholly the allegation of special damage, the plaintiff would, nevertheless, be entitled to nominal damages. And, in this same case, it was held, that special damages, resulting from a breach of duty, do not constitute a fresh ground of action, but are merely the measure of the injury resulting from the original cause. This same doctrine was held in Wilcox v. Plummers, executors (4 Pet. 172), which was an action for a loss re Jan. '80, 336. January 7, 1881. Germantown Passenger Railway Co. v. Walling. Negligence-Contributory negligence-Passenger railway companies-Duties and liabilities of, as regards passengers-Whether it is contribu tory negligence for a passenger to ride upon the ❘ that point by reason of a defect in the track, and front platform of a horse car, a question for also by reason of the speed of the car in turning the jury. the curve. Where the measure of duty on the part of a passenger is ordinary and reasonable care, and the standard shifts with the circumstances of the case, the question of contributory negligence is for the jury. Standing on the step of the front platform of a street railway car, with the implied assent of the conductor and driver, is not contributory negligence per se. W., having hailed a street car which stopped for him, went to the rear platform, but was unable to get on because of the crowd; he then went to the front platform, and, although that was crowded, he succeeded in getting on the step and maintained himself there by holding on with either hand to the iron bars at the sides. Through some mischance several passengers were thrown against him, forcing him off the car in front, where he was run over and killed: Held, that, having been accepted as a passenger, it was not contributory negligence per se for him to ride on the front platform as he did. Held further, that, as the facts of this case showed that the measure of duty on the part of the deceased was ordinary and reasonable care, it was properly left to the jury to say what that duty was, and whether the deceased had complied with it. Error to the Common Pleas No. 2, of Philadelphia County. Case, by Jane R. Walling and Joshua Clendennon, guardian of Grace M. Walling, against the Germantown Passenger Railway Company, for negligently causing the death of Bernard Walling, husband of the said Jane R. Walling. Plea, Not guilty." 66 Upon the trial, before MITCHELL, J., the following facts appeared: On the morning of Oct. 2, 1876, Bernard Walling hailed one of defendant's cars at Nineteenth and Girard Avenue, going westward. The car stopped, and he first tried to get upon the rear platform, but, being unable to do so by reason of the crowd, he went to the front platform, got upon the step, and maintained his position there by holding on to the iron of the dasher with one hand and with the other to the iron under the front window. The car proceeded for some distance without incident, when, upon rounding a curve formed by the track in running from Girard Avenue to Poplar Street, several passengers were precipitated against Walling, and, forcing his hold from the iron bar under the window, he clung on for a moment by the iron of the dasher, was carried some distance, then fell off in front of the car, was run over by it and instantly killed. Several other passengers who were standing on the front platform were also thrown off. The testimony was conflicting as to whether the passengers were forced against Walling by reason of a tinsmith who with his furnace and tools was attempting to get off the car, or by a jolt which occurred at The defendant presented the following points: (1) The jury must find for the defendant on the evidence. (3) As the plaintiff's own evidence shows that Bernard Walling, husband of the plaintiff, Jane R. Walling, got on the front platform of the car and stood while the car was in motion, with one foot on the step of the platform, and that the platform was so crowded that it was necessary for him to hold one hand to the dasher, and the other to the iron bar under the window of the car in order to retain his position on the car, and that his occupancy of this position in this manner was a contributory cause of his death, the plaintiff cannot recover. (4) If the jury believe that Bernard Walling, husband of the plaintiff, Jane R. Walling, got on the front platform of the car and stood while the car was in motion, with one foot on the step of the platform, and that the platform was so crowded that it was necessary for him to hold with one hand to the dasher and with the other to the iron bar under the window of the car, in order to retain his position on the car, and that his occupancy of this position in this manner was a contributing cause of his death, the plaintiff cannot recover. (5) The plaintiff's own evidence showing that the death of Bernard Walling, husband of the plaintiff, Jane R. Walling, resulted from the jolt of the car concurring with the crowded condition of the front platform of the car, and that Bernard Walling contributed to the crowding of the platform, the plaintiff cannot recover. (6) If the jury believe that the death of Bernard Walling, husband of the plaintiff, Jane R. Walling, resulted from the jolt of the car concur ring with the crowded condition of the front platform of the car, and that Bernard Walling contributed to the crowding of the platform, the plaintiff cannot recover. The Court declined to answer these points except as answered in the general charge, and charged the jury, inter alia, as follows: "Now it is the duty of the carriers of passengers, such as the horse-car companies, or any other carrying company, such as railroad companies, to take the highest possible care of their passengers which the circumstances permit; and when they allow a passenger to get on at an unusual place, that is an assurance to him that he will be taken care of, and that they will guard him against accident as far as the circumstances will permit. On the other hand, it is the duty of the passenger to go into the proper, usual, and safe place, if it is possible to do so. When Mr. Walling, therefore, stopped the car at Nineteenth Verdict and judgment for the plaintiff for $5000. Defendant took this writ, assigning for error the refusal of the Court to affirm the points above set forth. Street, it was his duty to get inside the car if he | ligence of defendant, that the plaintiff shall be could, and, if not, to take a place on the rear put in a reasonable and, as nearly as may be, in platform as the next best place, and not until he the same pecuniary condition that she would failed to get into the car or on the rear platform have been had no such accident occurred." would he have been justified in going to the unusual and somewhat dangerous place of the front platform. If, however, as I have said, he could not get in the body of the car, or could not get upon the rear platform, he was permitted to go upon the front platform, then he had a right to take that as an assurance that the company would take all reasonable and proper precautions to avoid injury to him even in that place. C. H. Gross (T. J. Barger with him), for plaintiff in error. The conduct of Walling in getting upon a car so crowded that in order to remain upon the car he was forced to occupy the position that he did is negligence per se, and the Court should have so instructed the jury. "As I have said, the testimony is that at Nineteenth Street Mr. Walling stopped the car, and the testimony of some of the witnesses is that he This case is distinguished from Pass. Railway went toward the rear platform, and then came Company v. Boudrou (8 WEEKLY NOTES, 241) forward and tried to get on the front platform. and kindred cases in New York, in that there the It is for you to say whether there is sufficient injuries resulted from causes too remote to be evidence to show that he could not get on the foreseen; here the position of the plaintiff made rear platform. If so, then he was justified in get-him liable to be tumbled off at any time, and by ting upon the front. He did not succeed in get- remaining upon the car he took that risk upon ting upon the front platform, however, but he himself. got only upon the step upon the left-hand side of the car as it was going out, and he there held on with one hand by the rail under the window in front of the car, and with the other to the iron of the dasher." "Upon the cause of the accident it is for you to consider all the evidence on it-the condition of the car, the speed at which it was going, the fact of the turning of the curve, whether or not there was any jolt, and to what extent it influenced the accident, the action of the tinsmith, and all the other facts in the cause-to make up your minds according to your best judgment upon all of the facts as to what was the cause of the accident. If you find it was through the negligence or fault of the defendant company, then you will find a verdict here for the plaintiff; but if you find it was not from the defendant's negligence, or if it was by the joint negligence of defendant and Mr. Walling himself, then, no matter how unfortunate the accident may have been in its results to the plaintiff, the defendant cannot honestly and legally be compelled to pay for it. "As you find in one or the other way, gentlemen, you will find a verdict either for the plaintiff or defendant. If you find a verdict for the plaintiff upon the grounds that I have stated, you would then have to consider the question of damages. That, as has been said to you by counsel for plaintiff, is allowed by law to be damages simply for pecuniary loss. Injuries to feelings and suffering by the deprival of companionship are not capable of compensation in money. The law does not undertake to place an estimate upon these considerations; but the law does permit, where the loss has resulted from the neg R. P. White, for the defendant in error. There was no such state of facts presented here as would have justified the Court in instructing the jury that the actions of the plaintiff constituted negligence per se. The habit of riding upon platforms is one continually indulged in by all passengers, without reproof by the railway companies, and as long as companies accept passengers to ride on the cars, the latter have a right to assume that the limit of safety has not been reached, and that they will be carried properly. If the crowded state of the platform is the standard of negligence, it shifts with the numbers upon it, and consequently is for the jury. It has been decided that it is not conclusive evidence of the want of due care, where a passenger stands upon the front platform, although there was room inside. Walton v. R. R., 107 Mass. 108. The question was properly left to the jury to say whether, in the position he was forced to occupy, the plaintiff acted negligently in remaining on the platform. Ginna v. R. R., 8 Hun, (N. Y.) 494. January 24, 1881. THE COURT. At the out- |