2 Grant 273 | Pa. | 1854
Tbe facts sufficiently appear in tbe opinion of tbe court delivered December 11, 1854, by
— Moses Boggs was constituted tbe attorney in fact of Rebecca Campbell, on tbe 18tb day of August, 1835, to receive for ber a sum of money due from tbe estate of ber aunt, and tbe money came into bis bands on tbe 23d day of February, 1837. More tban ten years thereafter, tbis action of assumpsit was instituted against bis personal representative, to
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 burden 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 this 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 it is only these technical continuing trusts, exclusively cognizable 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 sued. 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 favor 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 js 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. Potter v. McDowell, 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, are 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 favor 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 run from the time the action accrued, and not from the time that the damage was developed, or became definite.
Where the professional relation involves a series of acts and duties, an attorney is not sueable until the relation is dissolved. Where it involves a single transaction, as the collection of a particular, debt, he is not to be annoyed with an action the instant the money is in hand, and before demand made. He is to have a reasonable time to remit or give notice of the collection ; but if he do not remit or give notice within a reasonable time, it is culpable negligence — a breach of the contract with his client — for which an action may be brought without demand. Nowhere, either in the principles of the law or in the adjudged cases, do we find any countenance for the doctrine, that the right of action must wait on the act of the attorney in giving notice to the client, for then, possibly, he might never give notice, and thus escape being sued altogether; and if the right of action be not suspended on such a contingency, neither is the running of the statute.
For these reasons we are of opinion that the answer made to the plea of the statute in this case, is entirely insufficient, and that the judgment should be affirmed.
Judgment affirmed.