Wickersham v. Russell

51 Pa. 71 | Pa. | 1865

The opinion of the court was delivered, by

Strong, J.

Considering the Court of Common Pleas as the best judge of the meaning of its rules of practice, we have often said that we will not reverse for any construction given to them which is -not palpably erroneous. In this case the defendant admitted every material averment of fact, made in the plaintiff’s affidavit, which he did not directly traverse by his own. The plaintiff’s affidavit set out that taxes had been assessed against the defendant for four successive years, amounting in all to the sum of $769.89, from which he had never been exonerated. The affidavit also averred that the plaintiff had been appointed tax-collector for those several years, and that he had become liable for the taxes assessed against the defendant, and had paid them, and that the defendant had not paid any part of them, except the sum of $441.31. The affidavit of the defendant denied no one of these averments directly. The utmost that can be made of it, is that it negatived the assertion that the plaintiff had paid the taxes, which was immaterial, and even that was not done directly. The defendant simply asserted his belief of a fact, when knowledge was in his power. This would not have been sufficient to prevent judgment for want of a sufficient affidavit of defence, as has been repeatedly decided. The allegation of the defendant’s belief that he had himself paid a part, at least, of the taxes, without specifying what part, is entirely consistent with the averments made by the plaintiff. There was no assertion that he had paid more than $441.31, the amount which the plaintiff conceded he had paid. Under the rule of the court, the affidavit of claim was therefore properly received in evidence to show that all its material averments were admitted, except those directly denied by the defendant’s oath, and none of them were thus denied.

The instruction given by the court to the jury respecting the Statute of Limitations was also correct. Until the expiration of two years from the date of his warrant, the plaintiff was prohibited, by the Act of Assembly, from attempting to recover the taxes by suit. While the warrant was in force, he could use it, and it alone, to enforce collection. Iiis right to employ an action upon the case did not accrue until November 15th 1858. Now it is upon his right, not to recover the taxes due from the defendant, but to use the common-law remedy that the statute operated. The remedy, not the debt, is regulated by it. It declares that actions upon the case, other than for slander, shall be commenced within six years next after the cause of such actions or suits, and not after. Until, therefore, the cause of the particular action, which the defendant sets up the statute to bar, has arisen, until the right is complete to institute that action, the statute does not begin to run. And it is only from the time when it begins to run, that the six years, during which the action is not barred, are to be computed.

The judgment is affirmed.