[Leg. Int., Vol. 31, p. 230.]

MORRIS et al. vs. HANNICK.

1. The statute of limitations never extinguishes a debt; it only forms a bar to the remedy to recover it by action.

2. Where several remedies are given, the party entitled to them may select that which is best calculated to serve his ends.

3. The act of February 24, 1806, authorizing judgments to be entered by the prothonotary on notes and other instruments, with confession of judgment attached, gives an additional remedy for collection to which the statute of limitations doce not apply. 4. Where a debt, even though it be "grounded upon any lending or contract, without specialty," is acknowledged by a debtor under the form of a note, with confession of judgment attached, it may be entered in judgment and collected, notwithstanding more than six years have intervened between the maturity of the note and the entry of judgment upon it.

Rule to open judgment. Opinion delivered April 6, 1874, by

HARDING, P. J.-It is conceded here that the defendant became indebted to the plaintiffs, during the early part of the year 1865, in the sum of one hundred and twenty dollars, for which he gave a note as follows:

"$120.

PITTSTON, Feb. 7, 1865.

One month after date, I promise to pay Morris & Walsh, or bearer, one hundred and twenty dollars, with interest, without defalcation or stay of execution, value received. And I do hereby confess judgment for the said sum, with interest, costs of suit and a release of all errors, waiving inquisition, and confessing condemnation on real estate. And I do further waive all exemption laws, and agree that the same may be levied by attachment upon wages for labor or otherwise.

(Signed)

MICHAEL HANNICK."

The plaintiffs held this note eight years and upwards, or until December 15, 1873, when they made application to the prothonotary to have judgment entered upon it against the maker, which was accordingly done; and thereupon they proceeded by execution to collect their

money.

At this stage of the case, the defendant came in with an affidavit, setting forth several matters by way of avoidance, but alleging specially, that if the plaintiffs were permitted to proceed with their execution, he would be deprived of the right to interpose the plea of the statute of limitations. Indeed, as developed subsequently, this constituted the sole basis of his resistance to the proceedings on the judgment.

Can the plea, non assumpsit infra sex annos, avail in Pennsylvania against an ordinary note for a sum of money, with confession of judgment attached, where the holder has failed to have judgment entered against the maker, until the expiration of six years after the maturity of the note? The act of 27th March, 1813, Purd. 930, pl. 18, provides, "... that all actions of debt grounded upon any lending or contract, without specially . . . shall be commenced and sued within the time and limitation hereafter expressed, and not after, that is to say, ... within six years next after the cause of such actions, . . . and not after."

...

That the note in question is not a specialty, will be assented to at once. A specialty is defined to be a writing sealed and delivered, containing some agreement: 1 Binn. 261; 2 S. & R. 503; a writing sealed and delivered, which is given as a security for the payment of a debt, in which such debt is particularly specified: Bac. Ab. Obligation, A. And though it be not said in the body of the writing that the parties have set their hands and seals, yet if the instrument be really sealed it is a specialty; but if it be not sealed, it is not a specialty, even though the parties in the body of the writing make mention of a seal: 2 S. & R.,

supra.

Again, a note of this character has no analogy with certain causes of action, not grounded in specialty, which have hitherto been adjudicated as being outside of the applicability of the statute of limitations. For example: it has no analogy with an action of debt on a foreign judgment, as in Richards vs. Bickley, 13 S. & R. 395; nor with a claim for a legacy, as in Thompson vs. McGaw, 2 W. 161; Doebler vs. Snavely, 5 W. 225; nor with the claim of a widow for interest on a third of the purchase-money on her husband's real estate, sold by an administrator, as in Dillebaugh's Estate, 4 W. 177; nor with a claim for a distributive share of personal estate under the intestate laws, as in Patterson vs. Nichol, 6 W. 379; nor with an award at common law, as in Rank vs. Hill, 2 W. & S. 56; nor with a recognizance in the Orphans' Court, as in De Haven vs. Bartholomew, 7 P. F. S. 126. Being then neither a specialty, nor within the category of causes of action to which the statute of limitations does not apply, the inquiry is put with apparent pertinence, why should not the judgment be opened, and the defendant thereby allowed to avail himself of a plea which has had statutory recognition in this country for a century and a half and upwards?

In Brown vs. Sutter, 1 D. 240, Judge Shippen said, that the court would never open a regular judgment to let in a plea of the statute of limitations. But in Ekel vs. Snevily, 3 W. & S. 272, Chief Justice Gibson modified this doctrine somewhat, though the point then under consideration had reference to the form of action, and not to opening a judgment regularly entered. He said in that case, that the plea of the statute of limitations, being no longer an unconscionable one, as was considered in Schock vs. McChesney, 4 Y. 507, and in The Bank vs. Israel, 6 S. & R. 294, the rule of practice would not be recognized to the extent it had been in Brown vs. Sutter.

In disposing, however, of the question raised by the proceeding before us, it is not vitally material to what extent the rule of practice referred to may be recognized, either in respect to forms of action, on causes of action: it is enough that there is something else to be considered here besides the statute of limitations. The act of February 24, 1806, Purdon, 825, pl. 32, provides, that "it shall be the duty of the prothonotary of any court of record within this Commonwealth, on the application of any person being the original holder, or assignee of such holder, of a note ... in which judgment is confessed .. to enter judgment against the persons who executed the same, for the amount which, from the face of the instrument, may appear to be due," etc. Whenever, therefore, a debt, even though it be "grounded upon any lending or contract, without specialty," is acknowledged by a debtor under the

form of a note, with confession of judgment attached, it comes within the provisions of this act of assembly, and may be entered in judgment and collected, notwithstanding more than six years have intervened bctween the maturity of the note and the entry of judgment upon it. The act simply gives to the creditor or holder of the note an additional remedy for its collection. No principle of law is more firmly established than that, when several remedies are given, the party entitled to them may select that which is best calculated to serve his ends. It is not denied that the judgment here represents a subsisting indebtedness. Now, the statute of limitations never extinguishes a debt; it only forms a bar to the remedy of the holder to recover it by action: Higgins vs. Scott, 22 Eng. Com. L. R. 113; Leasure vs. Mahoning Township, 8 W. 551; McCandless' Estate, 11 P. F. S. 11. But it is not that remedy which these plaintiffs are pursuing; on the contrary, they have selected the remedy attaching to the confession of judgment, and to this the statute of limitations does not apply. They have indulged the defendant eight years and more; he seeks now to avoid payment altogether because he was not pushed to the wall inside of six years.

The rule is discharged.

M. Regan, Esq., for rule. M. Cannon, Esq., contra.

[Leg. Int., Vol. 31, p. 31.]

MORSS v8. GRITMANN, Assignee in Bankruptcy, etc.

An assignee in bankruptcy may appeal from an award of arbitrators under the compulsory arbitration law, without the payment of costs, the adverse party having taken out the rule of reference.

Rule to strike off appeal. Opinion delivered July 23, 1874, by HARDING, P. J.-The only question here is, can an assignee in bankruptcy appeal from an award of arbitrators without the payment of costs?

The proviso to the 30th section of the compulsory arbitration law is in these words: "Provided, that in all cases in which executors, administrators, or other persons suing or sued in a representative capacity, or minors, shall be the party appellant from an award, the appeal shall be good, without the payment of costs, or entering in recognizance, as aforesaid, if such appellant shall not have taken out the rule of reference."

The rule of reference in this case was taken out by the plaintiff, the award was in his favor, the appeal by the assignee in bankruptcy was in time; and, with the exception of non-payment of costs, it was in strict conformity with the statute.

a

Under the general bankrupt law, an assignee in bankruptcy stands in representative capacity," and may sue and be sued in that relation. He is, therefore, within the protection of our statute, and may appeal from an award of arbitrators without the payment of costs. It is the character of the suit that determines this right: Pugh vs. Ottenkirk, 3 W. & S. 172.

The rule is discharged.

P. C. Gritmann, Esq., for rule. George B. Kulp, Esq., contra.

[Leg. Int., Vol. 31, p. 269.] DAVENPORT vs. WILLIAMS.

On a judgment obtained in the Common Pleas, either by adversary action or by confession, which, without costs, shall not amount to more than one hundred dollars (the plaintiff not having previously filed the required affidavit), costs of execution will be allowed.

Opinion delivered by

CONYNGHAM, P. J.-Under the 26th section of the act of 1810, Purdon, 848, pl. 26, any person who obtains a judgment in the Common Pleas, "which, without costs, shall not amount to more than one hundred dollars," not having previously filed the required affidavit, "shall not recover costs in such suit." The court has jurisdiction of the case, and can allow the judgment; but the party having so limited a claim must pursue all the proceedings necessary to secure the judgment, under the penalty of payment of costs. The judgment for the debt, either obtained by adversary action or by confession, as in the present case, became regularly entered as a judgment of record in the Common Pleas, and must possess all the ordinary incidents of such an entry.

A party thereto becomes entitled to an execution in due season, in order to collect the debt, even though the judgment be upon a note, with confession, and is obtained or recovered within the meaning of the section above cited. The penalty becomes complete, and attached by the judgment. It does not accrue by reason of the non-payment of the same, or the use of further means for its collection, but plainly and technically applies only to the loss of what are commonly called the costs of a suit; what are usually termed execution costs, but in reality the fees of the officers upon an execution, are not, in our opinion, covered by the penalty. It is like the case of a judgment entered on a transcript: when a return of nulla bona is once filed, an execution thereafter will issue from the court with the full costs; the analogy, however, is more plain in appeals from justices, formerly entered, under the proviso to the 4th section of the justices' act of 1810, 5 Sm. Lws., 163, now repealed, and those now entered under the 1st section of the act of 1833, Purdon, 860, pl. 90; in all which cases, if the plaintiff recovered any sum, though it did not carry costs, he could still collect his real judgment, with the costs of execution.

The debt in this case became a valid judgment by the defendant's confession, and as he neglected to pay it, and compelled the party to resort to an execution, he must pay the incidental charges. He must be considered as knowing that it could at any time be entered in a judgment upon his neglect, and he must therefore abide the conse

quences.

The rule will be made absolute upon the payment of debt, interest and execution costs.

[Leg. Int., Vol. 31, p. 269.]

STRONG et al. vs. O'Donnell.

1. Shares of national bank stock are personal property.

2. Those belonging to non-residents are separated by the acts of Congress from the persons of their owners for purposes of taxation, and are to be taxed at the place where the bank is located.

3. The States may direct the manner and place of taxing the shares of resident owners, and the Legislature of Pennsylvania not having separated such shares from the person of their owner, their situs, like that of other personal property, is at the domicil of their owner, and they are to be taxed in the town or city where he resides, not in that where the bank is located.

4. To avoid multiplicity of suits, the court has jurisdiction to enjoin against the collection of an illegal and unauthorized tax.

In equity. Motion to dissolve preliminary injunction. Opinion delivered by

DANA, J.-The bill was originally filed against the present defendant, O'Donnell, and also against the borough of Pittston, the poor district of Pittston borough, and Pittston borough school district, three municipal bodies, distinct in organization and differing in territorial

extent.

The poor district to which Pittston borough belongs is composed of the borough and township of Pittston, the township of Jenkins, the borough of Pleasant Valley, and the townships of Lackawanna and of Old Forge. The corporate name of the district is, "the directors of the poor of Jenkins township, Pittston borough, and Pittston township. This bill was amended by striking out all the defendants except James O'Donnell, and conforming the designation of the poor district, where it occurs in the statement of the complaint, to its true corporate

name.

The averments of the amended as well as of the original bill are substantially: That the plaintiffs are residents of the borough of West Pittston, and not of the borough of Pittston; that they are owners of certain shares of the capital stock of the First National Bank of Pittston, located in the borough of Pittston; that the three corporations above named have severally assessed their shares of stock with taxes for borough, poor, and school purposes for the year 1873, and placed duplicates for the same, with warrants attached, in the hands of the defendant, James O'Donnell, their receiver of taxes, who has levied upon certain shares of said stock, and threatens, if the taxes are not paid, to enforce their collection by sale.

The plaintiffs, being residents of the State and county, claim that the taxation of their stock by the authorities of the borough in which the bank is located, but in which the plaintiffs do not reside, is without authority of law, and they pray that the defendant be enjoined against the collection of such taxes.

The question for decision is, where should shares of the capital stock of a national bank belonging to persons residing in the same county, but not in the same town where the bank is, be taxed?

The plaintiffs claim that such shares should be included in the valuation of their other personal property, and taxed where they reside. The defendants, on the other hand, contend that they should be taxed where the bank is located.