A tort by which the estate of the defendant was not increased,
and the estate of the plaintiff damaged only as an indirect
consequence of the alleged wrongful act of the defendant does not,
either at common law or by the statutes of Virginia, survive the
death of the wrongdoer.
The plaintiff elected to go into court on an action sounding in
tort, and it must abide by its election.
On September 11, 1900, the plaintiff in error as plaintiff
commenced this action in the Circuit Court of the United States for
the Eastern District of Virginia. The declaration, after stating
that both parties were citizens of Virginia, alleged that the
plaintiff was a state bank, chartered under the laws of that state,
and the defendant a collector of internal revenue of the United
States for the Second District of Virginia, and that,
"between the months of November, 1899, and August, 1900, the
plaintiff made, issued, and paid out seven hundred dollars of its
circulating notes payable to the bearer and intended to be used for
circulation in ordinary business as currency. The Commissioner of
the Revenue of the United States assessed upon these notes a tax of
ten percent on their face value, equal to seventy dollars, which
said tax is imposed upon them by the nineteenth section of the Act
of Congress of February 8, 1874, and by section 3412 of the Revised
Statutes of the United States, and said defendant, James D. Brady,
acting as said collector of internal revenue of the United States,
required of plaintiff and demanded of it that it pay said tax, but
because said section of said Act of February 8, 1875, and said
section 3412 of the Revised Statutes of the United States, imposing
said tax upon said notes, are repugnant to the Constitution of the
United States, the plaintiff refused to pay said unlawful tax;
therefore on the ___ day of September, 1900, the defendant
forcibly
Page 184 U. S. 666
entered upon the premises of the plaintiff by virtue of a
distress warrant held by him, authorizing and commanding him to
collect said unlawful tax, and levied on and seized a large
quantity of plaintiff's personal property, and was in the act of
removing and carrying away said property to sell the same when the
plaintiff, protesting against the illegality of defendant's act,
paid him said tax to procure a release of its said property; that
defendant well knew said acts of Congress imposing said tax were
repugnant to the Constitution of the United States, and he entered
upon plaintiff's premises and levied on and seized its property,
well knowing that he was doing unlawful acts, and he did the same
maliciously and with the purpose and intention of doing a wanton
injury to plaintiff and damaging its credit, so as to do it all the
harm possible, and said unlawful act has damaged its credit and
done it an irreparable injury; that the act of Congress authorizing
the issue of said distress warrant to collect said unlawful tax is
repugnant to the Constitution of the United States, and because all
of said acts of Congress are repugnant to the Constitution of
United States the plaintiff's case arises under the Constitution of
the United States; that said unlawful acts of said defendant have
damaged the plaintiff six thousand dollars, and therefore it
sues."
A demurrer to this declaration was filed, sustained, and
judgment entered for the defendant. Thereupon this writ of error
was sued out. After the case had reached this Court, the defendant,
James D. Brady, died, and an application was made to revive in the
name of his personal representative.
MR. JUSTICE BREWER delivered the opinion of the Court.
We have recently had before us a similar action against the same
party, in which also was presented the question of survivorship
Page 184 U. S. 667
(
Patton v. Brady, ante, 184 U. S. 608),
and to the opinion filed in that case we refer for a discussion of
the question. There, the amount of property taken by the defendant
as collector was over $3,000; here it is only $70. So far as a
recovery of the tax charged to have been illegally levied and
collected is sought, it is practically an action in assumpsit for
money had and received. Beyond that, nothing is suggested but a
tort, and a tort by which the estate of the defendant was not
increased and the estate of the plaintiff damaged only as an
indirect consequence of the alleged wrongful act of the defendant.
Such a tort does not, either at common law or by the statutes of
Virginia, survive the death of the wrongdoer.
See
authorities referred to in the opinion cited.
It may be added that it is not easy to see how, upon the acts
charged against, the defendant there could be, even if the tax were
declared illegal, any further recovery than the amount of such tax,
with interest. It is true there is an averment that the defendant
knew he was doing unlawful acts, that he did them maliciously and
with the purpose and intention of doing a wanton injury to the
plaintiff and damaging its credit, but no wrongful act is charged
against him except it be in the mere collection of this alleged
illegal tax. If the tax is legal, then nothing is disclosed which
would give any right of recovery to the plaintiff; nothing was done
by the collector in making the collection other than was strictly
his duty. So, on the other hand, if the tax be adjudged illegal, no
act of wrong is shown except in the fact of compelling payment. In
other words, he is charged with doing nothing that an officer ought
not to have done in attempting to make a collection. An averment
that a party has acted maliciously and with the intention of doing
a wanton injury does not add to the measure of relief obtainable in
an action of implied assumpsit. If it does in any action, it is
only in one sounding wholly in tort, in which malice and wantonness
may sometimes justify exemplary damages.
The case stands thus: if this is to be treated as an action of
assumpsit, then the amount in controversy is not sufficient to give
the circuit court jurisdiction; if as an action of tort, then it
did not survive. But a party cannot unite the two; avail
Page 184 U. S. 668
himself of the large amount claimed on account of a tort in
order to vest jurisdiction in the circuit court, and then on the
death of the alleged wrongdoer prevent an abatement of the action,
which would necessarily take place if the action was only for a
tort, by reason of an averment of facts from which a contract to
pay a small sum, one below the jurisdiction of the court, might be
implied. In other words, he cannot call it tort to acquire
jurisdiction, and contract to prevent abatement. The plaintiff
elected to go into court on an action sounding in tort. It could
not get in in any other way. It must abide by its election, and
cannot be permitted to transform its action thereafter into one of
contract. Abatement must therefore follow.
No judgment was entered in favor of the plaintiff. There has
been no adjudication in its favor, either on the contract or the
tort. What disposition ought now to be made of the case? In
Martin v. Baltimore & Ohio Railroad, 151 U.
S. 673, where the action sounded wholly in tort, it was
said (p.
151 U. S.
703):
"The result is that, by the law of Virginia, the administrator
has no right to maintain this action, and that, by the statutes of
the United States regulating the proceed in this Court, he is not
authorized to come in to prosecute this writ of error. The only
verdict and judgment below were in favor of the defendant, who is
not moving to have that judgment affirmed or set aside. The
original plaintiff never recovered a verdict, judgment upon which
might be entered or affirmed
nunc pro tunc in his favor.
If the judgment below against him should now, upon the application
of his administrator, be reversed, and the verdict set aside for
error in the instructions to the jury, or, according to the old
phrase, a
venire de novo be awarded, no new trial could be
had, because the action has abated by his death.
Hemming v.
Batchelor, above cited;
Spalding v. Congdon, 18 Wend.
543;
Corbett v. Twenty-third Street Railway, 114 N.Y. 579;
Harris v. Crenshaw, 3 Rand. 14, 24;
Cummings v.
Bird, 115 Mass. 346."
"The necessary conclusion is that, the action having abated by
the plaintiff's death, the entry must be writ of error
dismissed."
We are inclined to think that such is not exactly the proper
Page 184 U. S. 669
disposition to be made of this case, because in the plaintiff's
cause of action is stated a claim for the recovery of a tax, which,
as alleged, it has been wrongfully compelled to pay. While the
circuit court may not have jurisdiction of an action for that claim
on account of the small amount thereof, it would not be right to
leave the present judgment as a bar to an action in a court that
could take jurisdiction. The proper judgment is, and it is so
ordered, that the case be remanded to the circuit court, with
instructions to set aside its judgment and enter one abating the
action by reason of the death of the defendant.
Case No.194, between the same parties, involves the same
question, and will be disposed of in the same way.
MR. JUSTICE GRAY took no part in the decision of this case.
