Bank of Iron Gate v. Brady/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, Patton v. Brady, 184 U.S. 608, ante, p. 493, 22 Sup. Ct. Rep. 493, 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 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 & O. R. Co. 151 U.S. 673, sub nom. Gerling v. Baltimore & O. R. Co. 38 L. ed. 311, 14 Sup. Ct. Rep. 533, where the action sounded wholly in tort, it was said (p. 703, L. ed. 322, Sup. Ct. Rep. 545):

'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, L. R. 10 Exch. 54, 44 L. J. Exch. N. S. 54; Bowker v. Evans, L. R. 15 Q. B. Div. 565; Spalding v. Congdon, 18 Wend. 543; Corbett v. Twenty-third Street R. Co. 114 N. Y. 579, 21 N. E. 1033; Harris v. Crenshaw, 3 Rand. (Va.) 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 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. 

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