Campbell's Administrator v. Boggs

• Decision Date: 01 January 1864
• Citation: 48 Pa. 524
• Parties: Campbell's Administrator versus Boggs. (a)
• Court: Pennsylvania Supreme Court

Page 524

48 Pa. 524

Campbell's Administrator versus Boggs. ^(a)

Supreme Court of Pennsylvania.

The opinion of the court was delivered, in 1855, by WOODWARD, J.

Moses Boggs was constituted the attorney in fact of Rebecca Campbell on the 18th day of August 1835, to receive for her a sum of money due from the estate of her aunt, and the money came into his hands on the 23d day of February 1837.

More than ten years thereafter, this action of assumpsit was instituted by her personal representative, to recover the money so received, and the defence rests on the Statute of Limitations.

An attorney in fact who collects money for his principal is bound to pay it over at once, and his neglect to do so, is a breach of the implied contract, for which an action of assumpsit will lie. And as the Statute of Limitations operates on the remedy, it begins to run as soon as the right of action accrues. When the action has been delayed for more than six years, and the statute is pleaded, the burthen of proving facts to resist its operation, or, in the usual phrase, to take the case out of the statute, is upon the plaintiff.

What does the plaintiff rely on for this purpose? He first alleges a trust; that Moses Boggs stood in a relation of such confidence to Mrs. Campbell as to deprive him of the protection of the statute. A trust, without doubt, there was; but it has been repeatedly said, that they are only those technical, continuing trusts exclusively cognisable in equity, which are exempt from the statute. Finney v. Cochran, 1 W. & S. 118; Agnew v. Fetterman, 4 Barr 56. Had counsel gone into equity to enforce this trust, principles of decision in analogy to the Statute of Limitations would have been fatal to a claim delayed so long. Much rather, then, is the remedy barred when a common law action is employed which is expressly within the statute. A trust that is not subject to the statute cannot be so enforced. The plaintiff's answer to the plea of the statute must be given up, or his action must. They cannot consist.

The next ground assumed by the plaintiff is, that the statute does not commence to run in favour of an attorney in fact, who has collected money for his principal, until he has given notice to the principal of the receipt of the money. It is likened to the case of an attorney at law, and this rule is said to have been established in respect to this class of agents in McDowell v. Potter, 8 Barr 189. I confess I see no adequate ground for a distinction between attorneys in fact and attorneys at law. Diligence and skill in the collection, and promptness and fidelity in the paying over moneys, is required of both. It is reasonable, therefore, that they should have the same measure of protection from the Statute of Limitations. What then, is the settled rule, as to the time when the statute begins to run in favour of an attorney at law? This question was very carefully considered in Wilcox v. The Executors of Plummer, 4 Peters R. 172. The action was assumpsit, and it was held that when the attorney was chargeable with negligence or unskilfulness, his contract was violated, and the action might have been sustained immediately, and as a consequence, that the statute ran from the time the action accrued, and not from the time that the damage was developed or became definite.

The same principle will be found very fully vindicated in Short v. McCarthy, 3 Barn. & Ald. 626, Battly v. Faulkner, 3d Eng. Com. Law 289, and Howell v. Young, 11 Eng. Com. Law 219. In the latter case the negligence for which the action was brought, was not discovered for some years, but the court held the action accrued from the breach of duty. "There is no new misconduct or negligence of the attorney," said Holroyd, J., "and consequently there is no new cause of action." In the recent case of The East India Company v. Paul, 1 Eng. Law & Eq. R. 49, Lord Campbell stated the result of the English authorities in these words: "The rule is firmly established that in assumpsit the breach of contract is the cause of action, and that the Statute of Limitations runs from the time of the breach, even where there is fraud on the part of the defendant." This rule of decision has been applied to notaries: Bank of Utica v. Childs, 6 Cowen 245. And to sheriffs: 9 Barr 120; Miller v. Adams, 16 Mass. R. 456; Rice v. Homer, 12 Mass. R. 127; Mather v. Green, 17 Ibid. 60. And to various agencies; 1 Gill. 234; 2 Richardson 133; 1 Sandford S. C. R. 98; 2 Strobh. 344. See also, 4 Alabama R. 493; 2 McMullan 171; 4 Howard 331; 1 Sumner 478.

In New York and Pennsylvania, it has been applied to actions against attorneys for moneys collected: Stafford v. Richardson, 15 Wend. 306; Agnew v. Fetterman, 4 Barr 58. But fraudulent concealment has been held to modify the rule in Pennsylvania: Jones v. Conway, 4 Yeates 111; Harrisburg Bank v. Foster, 8 Watts 16; McDowell v. Potter, 8 Barr 190. It is on this ground alone the ruling in McDowell v. Potter can be sustained. The pleadings are not given in the report of the case, but the opinion rests upon the plaintiff's replication to the defendant's plea of the statute, that he had neglected to advise them of the receipt of the money, "and altogether concealed the same from their knowledge." If the evidence tended to support that replication, it ought to have gone to the jury, and if the fraud was found, then I agree that according...