The opinion of the court was delivered by
Thompson, J.
1. It is somewhat surprising that the jury did not find for the plaintiff in error on the first point of the defend-
ant under the instructions, as the proof seems clear of any reasonable doubt, that the plaintiff below had actually been •credited in the suit of Byers’s executor against himself, the amount of the judgment, the payment of which he now seeks to recover from the estate, of Morrison. . The judgment turned out to be a lien on the land purchased by Mullin from Byers, and was, by assignment, payable to Morrison. The evidence showed that he agreed with Byers to pay Morrison. Being sued for a balance of purchase-money by Byers’s executor, he set up as adefence, amongst other matters, the payment of this .judgment to Morrison. This was seven years after the date of the receipt — the time of payment. He was allowed the credit. Having thus applied the money he had paid to Morrison, to a debt he owed him, it seems strange that he should have a verdict for it, after having once received the full benefit of the payment. This may have been the fault of the jury; but it is more likely attributable to the views of the court in regard to the second point, or they would have corrected the action of the jury by setting aside the verdict.
2. The second point of the defendant prayed the court to charge that if the judgment, No. 68, August Term 1816, “was a lien on the property purchased by Mullen of Byers, situated in Napier township, then, and in that case, Mullin purchased that property, subject to this judgment, and was in good faith bound to pay it to Morrison; and if he did pay it, although out of a wrong fund, or in his official capacity as sheriff, he has no right to recover in this case; since the defendant was entitled to the money [16]*16from Mullin, it makes no difference to him if Mullin received a credit for it on the trial with Byers’s executor.”
This point the court answered in the negative. We think this was error. The point simply asserted that Morrison’s judgment turning out to be a lien which he could enforce against Mullin, he was entitled to retain money he had received from him under an honest supposition that it was a lien on other property. If it had been a lien on the Snake Springs property, and entitled to priority, then the sheriff was bound to pay him in his official capacity the amount of his judgment, out of the proceeds of the sale of that property. But as it was not entitled to be discharged out of the proceeds of that property, but out of property which the sheriff himself unofficially had purchased from the defendant in the judgment, then it was payable by him unofficially to Morrison. Morrison, under these circumstances, received the money from Mullin, and the refunding receipt, at most, only made him debtor to Mullin in his unofficial capacity. In this same capacity, Mullin was debtor to Morrison to the same amount. An equitable extinction of the one demand by the. other, was necessary to prevent circuity of action, and should have been allowed. If the testimony was entitled to credit, and we see no contradiction of it, Mullin agreed with Byers, to pay this judgment to Morrison, and to have a credit in the purchase-money. It seems very clearly proven, that he did get credit for it. But if he did not, he was entitled to it; and if he neglected to claim it, or otherwise lost it, is that a reason for calling for a return of money which, at the moment of the receipt of it, Morrison might fairly take on the footing of the obligation of Mullin to pay in one or other of two capacities ? If, at any time, his title was in equity good to the money, as against Mullin, without some act or agreement, or assertion at least, I cannot see how he could have lost it. The payment gave Mullin an equitable title to the judgment as against Byers. He does not pretend he lost it as a credit, because its lien was lost. It matters not whether it remained a lien or not, if he agreed to pay it for Byers; it was still a set-off in his favour if he paid it, because of the agreement. If it was not a lien against Byers, it was, nevertheless, a debt due by him. If, then, he was not prejudiced by the loss of the lien, as against Byers, how was he injured because of its non-revival against himself as terre-tenant ? I cannot conceive how this could be. The court put out of view the evidence of the promise and agreement of Mullin to pay Morrison altogether, and by their negative left the case on the point, as if there had been no such agreement, and also as if there had been no legal right in Morrison, to receive the amount of his judgment at the hands of Mullin, at the time he did receive it. If he had a right to receive the money by virtue of [17]*17his lien, the proper hand had paid it, whether it rested on one or the other of the tracts; and for that the point should have been affirmed.
3. The next point is as to the effect of the statute of limitations.
A period of about twenty-three years had elapsed in this case between the date of the receipt which was the foundation of the action, and the"commencement of the suit. It is true, the agreement was to pay back the money acknowledged to have been received by the terms of the receipt, if it should, on a settlement of the liens against Byer’s interest in the land sold, turn out that Morrison was not at the time it was paid entitled to receive it. But was the statute, therefore, never to close upon such an agreement — never to commence running, if the plaintiff chose to sleep on his rights ? The statute fixes the period within which suit may be brought in case, to recover money, or to enforce a promise, to “six years next after the causes of action, or suit, and not after.” “From the time the right of action accrues:” Overton v. Tracey, 14 S. & R. 311. To give effect to the spirit of the statute, the law sometimes, in the absence of stipulation by the parties, fixes the time when the cause of action shall be taken to have accrued, by the duty of diligence required of the party. Where the time for doing an act,- necessarily precedent to bringing suit, is indefinite, it allows a reasonable time. When that reasonable time has elapsed, the duty .of diligence begins. And if this consists in the assertion of a legal right, then is the time from whence the statute should begin to run. There would be no reason for delaying its operation unless found in the nature or terms of the transaction. This is undoubtedly the principle of Steele’s Administrators v. Steele, 1 Casey 154, and Todd’s Appeal, 12 Parris 431.
It was held by this court in The Pittsburgh and Connellsville Railroad Company v. Byers, 8 Casey 22, that where a call was necessary to precede a suit for a railroad subscription, it must, by analogy to the operation of the statute of limitations on a debt, be made within six years. This doctrine is strongly sustained in Codman v. Rogers, 10 Pick. 112, where it was held, that if a demand be necessary to precede suit, it must be made within a reasonable time, and when no cause of delay is shown, it ought to be made within six years, and is not in time after that period. The making of the demand is an act, and if essential to sustain the suit, in no wise differs from any other act that may be necessary. In the case in hand, it is obvious, that to entitle the plaintiff to call' for a return of the money, he was to become the"actor, and to procure a settlement of the rights of distributees of the money made oh the sale of the land. This is the place he assumed to occupy with Morrison. He did nothing [18]
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The opinion of the court was delivered by
Thompson, J.
1. It is somewhat surprising that the jury did not find for the plaintiff in error on the first point of the defend-
ant under the instructions, as the proof seems clear of any reasonable doubt, that the plaintiff below had actually been •credited in the suit of Byers’s executor against himself, the amount of the judgment, the payment of which he now seeks to recover from the estate, of Morrison. . The judgment turned out to be a lien on the land purchased by Mullin from Byers, and was, by assignment, payable to Morrison. The evidence showed that he agreed with Byers to pay Morrison. Being sued for a balance of purchase-money by Byers’s executor, he set up as adefence, amongst other matters, the payment of this .judgment to Morrison. This was seven years after the date of the receipt — the time of payment. He was allowed the credit. Having thus applied the money he had paid to Morrison, to a debt he owed him, it seems strange that he should have a verdict for it, after having once received the full benefit of the payment. This may have been the fault of the jury; but it is more likely attributable to the views of the court in regard to the second point, or they would have corrected the action of the jury by setting aside the verdict.
2. The second point of the defendant prayed the court to charge that if the judgment, No. 68, August Term 1816, “was a lien on the property purchased by Mullen of Byers, situated in Napier township, then, and in that case, Mullin purchased that property, subject to this judgment, and was in good faith bound to pay it to Morrison; and if he did pay it, although out of a wrong fund, or in his official capacity as sheriff, he has no right to recover in this case; since the defendant was entitled to the money [16]*16from Mullin, it makes no difference to him if Mullin received a credit for it on the trial with Byers’s executor.”
This point the court answered in the negative. We think this was error. The point simply asserted that Morrison’s judgment turning out to be a lien which he could enforce against Mullin, he was entitled to retain money he had received from him under an honest supposition that it was a lien on other property. If it had been a lien on the Snake Springs property, and entitled to priority, then the sheriff was bound to pay him in his official capacity the amount of his judgment, out of the proceeds of the sale of that property. But as it was not entitled to be discharged out of the proceeds of that property, but out of property which the sheriff himself unofficially had purchased from the defendant in the judgment, then it was payable by him unofficially to Morrison. Morrison, under these circumstances, received the money from Mullin, and the refunding receipt, at most, only made him debtor to Mullin in his unofficial capacity. In this same capacity, Mullin was debtor to Morrison to the same amount. An equitable extinction of the one demand by the. other, was necessary to prevent circuity of action, and should have been allowed. If the testimony was entitled to credit, and we see no contradiction of it, Mullin agreed with Byers, to pay this judgment to Morrison, and to have a credit in the purchase-money. It seems very clearly proven, that he did get credit for it. But if he did not, he was entitled to it; and if he neglected to claim it, or otherwise lost it, is that a reason for calling for a return of money which, at the moment of the receipt of it, Morrison might fairly take on the footing of the obligation of Mullin to pay in one or other of two capacities ? If, at any time, his title was in equity good to the money, as against Mullin, without some act or agreement, or assertion at least, I cannot see how he could have lost it. The payment gave Mullin an equitable title to the judgment as against Byers. He does not pretend he lost it as a credit, because its lien was lost. It matters not whether it remained a lien or not, if he agreed to pay it for Byers; it was still a set-off in his favour if he paid it, because of the agreement. If it was not a lien against Byers, it was, nevertheless, a debt due by him. If, then, he was not prejudiced by the loss of the lien, as against Byers, how was he injured because of its non-revival against himself as terre-tenant ? I cannot conceive how this could be. The court put out of view the evidence of the promise and agreement of Mullin to pay Morrison altogether, and by their negative left the case on the point, as if there had been no such agreement, and also as if there had been no legal right in Morrison, to receive the amount of his judgment at the hands of Mullin, at the time he did receive it. If he had a right to receive the money by virtue of [17]*17his lien, the proper hand had paid it, whether it rested on one or the other of the tracts; and for that the point should have been affirmed.
3. The next point is as to the effect of the statute of limitations.
A period of about twenty-three years had elapsed in this case between the date of the receipt which was the foundation of the action, and the"commencement of the suit. It is true, the agreement was to pay back the money acknowledged to have been received by the terms of the receipt, if it should, on a settlement of the liens against Byer’s interest in the land sold, turn out that Morrison was not at the time it was paid entitled to receive it. But was the statute, therefore, never to close upon such an agreement — never to commence running, if the plaintiff chose to sleep on his rights ? The statute fixes the period within which suit may be brought in case, to recover money, or to enforce a promise, to “six years next after the causes of action, or suit, and not after.” “From the time the right of action accrues:” Overton v. Tracey, 14 S. & R. 311. To give effect to the spirit of the statute, the law sometimes, in the absence of stipulation by the parties, fixes the time when the cause of action shall be taken to have accrued, by the duty of diligence required of the party. Where the time for doing an act,- necessarily precedent to bringing suit, is indefinite, it allows a reasonable time. When that reasonable time has elapsed, the duty .of diligence begins. And if this consists in the assertion of a legal right, then is the time from whence the statute should begin to run. There would be no reason for delaying its operation unless found in the nature or terms of the transaction. This is undoubtedly the principle of Steele’s Administrators v. Steele, 1 Casey 154, and Todd’s Appeal, 12 Parris 431.
It was held by this court in The Pittsburgh and Connellsville Railroad Company v. Byers, 8 Casey 22, that where a call was necessary to precede a suit for a railroad subscription, it must, by analogy to the operation of the statute of limitations on a debt, be made within six years. This doctrine is strongly sustained in Codman v. Rogers, 10 Pick. 112, where it was held, that if a demand be necessary to precede suit, it must be made within a reasonable time, and when no cause of delay is shown, it ought to be made within six years, and is not in time after that period. The making of the demand is an act, and if essential to sustain the suit, in no wise differs from any other act that may be necessary. In the case in hand, it is obvious, that to entitle the plaintiff to call' for a return of the money, he was to become the"actor, and to procure a settlement of the rights of distributees of the money made oh the sale of the land. This is the place he assumed to occupy with Morrison. He did nothing [18]*18towards it within six years, and we think the application of the principles cited should bar him. He cannot excuse his want of diligence by the laggard pursuit of what he alleges was the same object by Woods’s heirs, in their suit against him, to which Morrison was no party, and of which he had no notice. If he chose to indulge them for sixteen years, it must be at his own expense. With this the defendant had no concern. He should have, within six years at least, had his right to sue settled, as was required in The Railroad v. Byers, and in Codman v. Rogers, supra. After that period, Morrison, or his representatives, had a full right to claim that his promise lived no longer. The court was, therefore, in error in regard to the statute of limitations.
4. Was there error in the reception of the record of the case of Woods’s Executor v. Mullin?
As it was a step towards proof of a judicial determination against Morrison, dependent on another fact, viz. whether he had been notified and required to defend the sheriff in the suit, which, in that event, might have had the effect of proceedings in distribution, perhaps it may not have been error to receive it. But to give effect to it, as if this had been shown, when such was not the case, was error. The action, in form, was simply for a breach of official duty in not paying over money as required by law. It had no appearance in form, of being a proceeding for distribution. And in substance it was not so, even regarding the opinion of the learned judge in the case of Gratz v. The Lancaster Bank, 17 S. & R. 278, as a true exposition of the practice, prior to the Act of 16tfy April 1827. In that case, Mr. Justice Huston, after stating the various modes adopted in different districts, by different judges, in cases of distribution, where there were conflicting claims, says, “ the practice” (in the 4th district) “ is, for one pai’ty claiming the money, to bring suit against the sheriff, and the other party claiming, to defend.” Even treating this as a general rule, which it was not, Morrison was not concluded by the judgment, for he neither defended the sheriff, nor had he notice to do so. He was neither a party nor privy to the action, and was not bound by the judgment. It contravenes the first principles of justice, to hold a man bound by a judgment against which he has neither an opportunity to defend, or notice in any way that he was to be directly involved in its consequences. The argument is worth nothing that asserts that the judgment was conclusive, because it was the only mode of settling questions of distribution. It is erroneous in fact and principle. The courts then had ample power to direct issues, and, by citation and notice to parties interested, bring all the conflicting claimants before them, and after hearing, mould their judgments and decrees,- so as to make distribution according to law and equity. Upon the determina[19]*19tion of such issues, a writ of error or appeal could be taken by the unsuccessful party, if he thought proper. We think the court erred in not affirming the defendant’s fourth point.
For these reasons this judgment must be reversed.
Judgment reversed, and a venire de novo awarded.
Justices Woodward and Read dissented from the ruling of the court on the last two points.