28 Pa. 261 | Pa. | 1857
The opinion of the court was delivered by
In 1836 Curcier was indebted to the Bank of Pennsylvania upwards of twenty thousand dollars, for which the bank had no security except Ms promissory notes. On these notes-a suit was brought, but the writ was never served. In 1843 Our-’ cier died. In 1851 his death was suggested on the record, and an alias summons was issued against the executor, who accepted service and entered an appearance by attorney.
When distribution of Cureier’s estate came to be made by the Orphans’ Court among his creditors, the Bank of Pennsylvania claimed her debt. The assets not being sufficient to pay all th'e debts, the other creditors objected to the claim of the bank on the
From that decision the present appeal has been taken. It is argued here: 1. That the statute of limitation does not, under the circumstances of the case, apply to the bank’s debt; and 2, That even if the statute did apply, the other creditors have no right to take advantage of it. Our opinion is against the appellant on both points.
1. These notes are twenty years old at the least. The limitation is now running over them the fourth time. Why should the right to recover upon them not be barred ? The suit brought against the executor in 1851 was too late. The claim then had an age more than two and a half times as great as was necessary to turn it out of any court in the state. The argument is that this suit against the executor was not a new suit, but merely the continuance of the action which had been brought against the decedent himself fifteen years before. The question is not whether a summons returned non est inventus, is to be regarded as the commencement of the action when it is followed in a short time afterwards with an alias which is actually served; but whether the statute is tolled by a writ not executed though there be an interval of fifteen years between it and the alias. If a party can lie by in such a case for fifteen years, he may do so for an indefihite time. A person who has paid his debt a quarter of a century ago, may be called upon to pay it again after he has lost his receipts, and the statute is to be no protection because his adversary at some period in the mean time has taken out a writ behind his back and given him no notice of it. But though an alias may be connected with an original writ not served so as to make both a part of the same process, it is not true that the alias can be safely delayed for more than six years after the original was taken out. Such was the opinion of this court as expressed by Judge Sergeant in Jones v. Owen, 5 R. 249, and it was reiterated by Judge Coulter in McClurg v. Fryer, 3 Harris 295. There is no case in our own books that has allowed a suit commenced in this way to be kept alive by continuances without an alias in less than six years, and there is no modern instance of its being done in England. It is plain therefore that the bank has shown nothing which forms a good replication to the plea of the statute. Her claim is clearly barred.
2. It is contended that however well settled the right may be of the executor to plead the statute, the creditors cannot set it up in the Orphans’ Court as a reason for excluding the bank from Her pro rata share of the assets. It would require much ingenuity to show how the Orphans’ Court could perform the duty of making distribution among the creditors of an insolvent estate without having the power to determine what is the amount of the debts
Decree affirmed.