Wickersham v. Lee , 83 Pa. 422 ( 1877 )

Mr. Justice Paxson

delivered the opinion of the court, March 28th 1877.

The defendants below pleaded actio non accrevit infra sex annos. To this plea the plaintiffs demurred, and thus raised an issue of law. The issues of fact were decided adversely to the defendants by the jury. The court below sustained- the demurrer and entered judgment upon the verdict. The single question here is, whether the plaintiffs were entitled to judgment upon the demurrer.

The defendants were collection agents. The declaration was in debt for not paying over certain moneys collected by them. It was contended by the plaintiffs that inasmuch as the action was not founded upon a contract in fact, but upon one that arises from an implication of law, it was not within the terms of the Statute of Limitations. The language of said statute is, “ all actions of debt grounded upon any lending or contract without specialty.” Richards v. Bickley, 13 S. & R. 399, was cited as sustaining the proposition that the statute does not apply in an action of debt against an attorney for not paying over money collected by him. No such point was decided in that case. It was an action of debt upon a foreign judgment, in which it was alleged that the foundation of the judgment was a specialty. The court held that in such case the statute was not a good plea. It is true, Mr. Justice Duncan, in delivering the opinion of the court, classes debt against an attorney for money received by him among the instances in which the statute does not apply, and refers to Comyn’s Digest, vol. 7, p. 415, as authority. I have examined the first American (from the fifth English) edition of Comyn, and find that it makes no reference to debt against an attorney. It does enumerate several instances in which the statute does not apply to an action of debt: as debt upon1 an award, debt for a legacy, debt against a sheriff for money collected upon a fieri facias, &c. It may be that where an attorney receives the money of his client by virtue of his official position and not by reason of any contract between them he would not be entitled to set up the bar of the statute to an action of debt brought to recover it. It is unnecessary to discuss this proposition, for we have no such question before us. The defendants below were mere collection agents. True, one of them was an attorney, and is so described in the declaration. But it is mere matter of description. . There is no averment that he received any of the plaintiffs’ money by virtue of his office of attorney. Further, he was not served, did not appear, and there was no trial as to him. The other defendant (Wickersham) was not an attorney, nor declared against as such. It is plain that as to him there was a contract relation. The declaration avers that “the said plaintiffs, heretofore, to wit, on the 17th day of'March 1862, * * * employed the said defendants to collect for them, the said plaintiffs, a claim,” &c. Here was an express contract to collect the money, and an implied contract in fact to pay it over when received. There is a manifest distinction between such a case and that of a public officer who merely owes a duty. A sheriff who receives money upon an execution is under no contract express or implied with the plaintiff in the writ. He collects it by virtue of his office, in obedience to the mandate of the execution, and when received it is his official duty to pay it over to whomsoever may be legally entitled to receive it. If the action at bar had been assumpsit it is clear the statute would apply. • This is settled by authority : Campbell’s Adm’r v. Boggs, 12 Wright 524; Rhines’s Adm’rs v. Evans, 16 P. F. Smith 192. Can the plaintiffs avoid the bar of the statute by merely changing the form of action ? We think not. It is the cause of action rather than the form of action which determines the applicability of the statute: DeHaven v. Bartholomew, 7 P. F. Smith 126 ; Thompson v. McGraw, 2 Watts 161; Doebler v. Snavely, 5 Id. 225; Dillebaugh’s Estate, 4 Id. 177; Patterson v. Nichol, 6 Id. 379; Rank v. Hill, 2 W. & S. 56. We are of opinion that the defendants were entitled to the benefit of the statute, and that it was error to enter judgment against them upon the demurrer.

The judgment is reversed, and judgment is now entered here in favor of the defendants upon the demurrer.