This must depend upon the usage among merchants. If such commissions are not usually charged, it was improper for the defendants to charge them, and the balance represented by them was not the true balance. If, on the other hand, it is considered proper among merchants, and is usual to charge a commission in such cases, the account is right in that particular.

"It appears, also, that another sum, debited to the defendants, was not credited in the account rendered by them. If an account of this was rendered before the suit was commenced, and in a reasonable time after the money was received, the defendants are in no fault on account of this sum. But at present it appears that the sum remained in their hands unacknowledged, when the suit was commenced. This matter may also admit of explanation.

"As, then, the question of costs is seen to depend upon facts which are not ascertained by the report of the referees, we conclude to recommit the report to them, with directions to consider and determine, 1. Whether, from the correspondence between the parties, the course of business between them, or from any other evidence in the case, it appears that the consignments were made and received, under an expectation or understanding that the plaintiff was to draw for the proceeds, or otherwise to direct the remittance. 2. Whether the account rendered of the sales, and of the balance, were true, according to the defendants' rights as factors, agreeably to the usage of commission merchants. 3. Whether the defendants, within a reasonable time after the receipt of the proceeds, rendered an account thereof to the plaintiff. And if they find all these points in the affirmative, they will not charge the defendants with costs; otherwise they will."1

§ 181. Thus it appears, that much depends upon whether the agent or consignee retains the funds of the principal claiming them either actually or constructively as his own, and with the actual or constructive knowledge and acquiescence of the principal. In other words, whether there has been a conversion, open and actual, or one to be presumed by the rules of law, under the circumstances of the case.2

1 [If the consignee return an account, the statute begins to run from the time when the account is received by his principal. Davies v. Crum, 4 Sandf. (N. Y.), Sup. Ct. 590.]

2 See Kinney's Ex'rs v. M'Clure, 1 Rand. (Va.), R. 284.

The statute, it appears, will run in favor of a master in equity against an account for the proceeds of property sold by him in his official character, without any demand, if there be notice of an adverse claim.1 It was held, in one case, that the statute will not run between principal and agent after an accounting between them; but it was on the ground that the accounting could not be presumed to be a demand for moneys collected by the agent previously, because they were kept out of view at the time of accounting.2 In Taylor v. Bates, in the Supreme Court of the State of New York, it was held, that an attorney was not liable to a suit for money collected for another, till demand made, or directions to remit; or that he was not in default till he received orders from his principal. It did not appear, said the court, by Woodworth, J., that the plaintiff ever demanded payment, or requested the money to be remitted; or that any laches were shown on the part of the defendant, or unwillingness to pay. To support an action grounded upon the liability of the defendant, before he had refused to pay or remit, according to instructions, would be in opposition to the nature of the trust the defendant had assumed, as well as against justice and good faith. This case is analogous to that of Ferris v. Paris, in the same court, where it was held, that a factor or consignee, apprising his principal of the sale of goods consigned to him, may wait to receive instructions as to the mode of remitting the net proceeds; and is not liable to an action until a default on his part in remitting or paying the proceeds, according to the order of his principal. In the subsequent case of Stafford v. Richardson, the same court, it was held, that an action against an attorney for money collected by him, must be brought within six years after the money is received by him, or the plaintiff will be barred by the statute; and that the fact that a demand was not made within six years before suit brought, will not save the statute. The court distinguish this case from that of Ferris v. Paris, the decision in which, they say, is correct. The defendant, in that case, had informed his principal of the receipt of the money, and waited for directions to remit, and it

1 Houseal v. Gibbs, 1 Bail. (S. C.), Eq. R. 482.

2 Wardlaw v. Gray, Dudl. (Ga.), Eq. R. 85.

8 Taylor v. Bates, 6 Cowen (N. Y.), R. 376; [Hyman v. Gray, 4 Jones (N. C.), Law, 155; Sneed v. Hanly, 1 Hemp. 659; Merle v. Andrews, 4 Texas, 200; Downey v. Garrard, 24 Penn. St. 52].

4 Ferris v. Paris, 10 Johns. R. 285; [Baird v. Walker, 12 Barb. (N. Y.), R. 298]. 5 Stafford v. Richardson, 15 Wend. (N. Y.), R.

was expressly said, that no laches were shown on the part of the defendant. Although the court said, an attorney may protect himself from a suit by want of a demand, he is not, for that reason, to be subject all his lifetime to demands, however stale. That if a demand was necessary in this case, the plaintiff should have made it in season to have brought his suit within six years, after the defendant had converted the property received by him to his own use. This view of the subject, it will be perceived, corresponds with the view taken of the subject by Mr. Justice Parker, in the above case of Clark v. Moody, in which he says, that it appeared in the case of Ferris v. Paris, to be the usage for the consignor to direct the mode of remittance; and in which he considers it important, whether a consignee, within a reasonable time after receipt of proceeds, renders an account thereof to his principal.2

1 [If the attorney give no notice within a reasonable time that he has collected the money, the statute of limitations will begin to run against the client's claim from the time when his attorney should have apprised him that he had collected funds. Denton v. Embury, 5 Eng. (Ark.), 228; McDonnell v. Bank of Montgomery, 20 Ala. 313. Or from the time when the client knew, or ought to have known, that the money was collected; and the burden of proof is on the attorney to show that his client ought to have known. McCoon v. Galbraith, 29 Penn. St. 293; McDowell v. Potter, 8 Barr (Penn.), 189. If the attorney gives notice, the statute will begin to run after the lapse of a reasonable time within which to demand the money collected, although no demand be made. Lyle v. Murray, 4 Sandf. (N. Y.), Sup. Ct. 355; Hickok v. Hickok, 13 Barb. (N. Y.), 632. And see Taylor v. Spears, 3 Eng. (Ark.), 429; and § 178, ante. But if the defendant, by his own act, prevent a demand, he shall not be allowed to object that it was not made in reasonable time. Emmons v. Hayward, 6 Cush. (Mass.), 501. Though if he merely produces delay by negotiation he may. East India Co. v. Paul, 1 Eng. Law & Eq. 44.]

2 [In cases of general agency, where there is a current account, the statute of limitations does not attach until the expiration of the agency; but in cases of special agency, where the transactions are isolated, the statute attaches to each item of the account. Hopkins v. Hopkins, 4 Strobh. (S. C.), Eq. 207. And in South Carolina, the statute will run in favor of a private agent to collect and pay over money, from the time he collects it. Estes v. Stokes, 2 Rich. (S. C.), 320. In 1832, A employed B and C, then in partnership as attorneys, to lay out $500 on mortgage. It was invested on a mortgage to D, who subsequently sold the land subject to the mortgage. The purchaser soon after paid the $500 to C, who, however, informed neither his partner nor A of such receipt; but again lent the money and continued to receive the interest. In 1838, the partnership was dissolved. A knew nothing of any of these transactions till 1848, nor did his representatives, and B was also ignorant of all the facts subsequent to the original advance of the money. It was held, in an action by the executors of A against B and C, that the statute of limitations was a bar. Sims v. Brutton, 1 Eng. Law and Eq. 446.]

§ 182. Where one of a copartnership was constituted an agent by the others on the dissolution, to collect the debts of the firm, a demand was held necessary under the following circumstances: By articles of copartnership, the acting partner was to collect whatever debts might be due at the termination of the partnership, and account for the same as he received them, or as often as the other partners should require. The partnership was dissolved on the 4th of August, 1774, except as to such matters as necessarily related to the settlement of their accounts, the collection of their debts, and closing of their affairs. The books, &c., were left with the acting partner, who, in April, 1777, made a payment in part to the other partners, who, being British subjects, were shortly afterwards obliged to leave the State. In 1800, a bill was filed against the executors of the acting partner, and the defendants pleaded the statute of limitations. But the plea was overruled. Taylor, C. J., delivering the opinion of the court, said: "The statement furnished by Kennon [the acting partner], was to show the progress from time to time he was making; the moneys were received by him in the character of a trustee, liable to pay what he received when his copartners should require it; and it was only when they did require it and he refused it, that the fiduciary character was put an end to." 1

1 McNair v. Kennon's Ex'rs, 3 Murph. (N. C.), R. 139. Where a bank receives money on deposit in the ordinary way from one of its customers, the latter cannot maintain an action for it without a previous demand either by check or otherwise; and the rule is the same, though the action be for a balance struck on the customer's bank book, by one of the clerks in the bank. (Cowen, J., dissenting.) Downes v. Phœnix Bank, &c., 6 Hill (N. Y.), R. 297. [But in Pott v. Cleg, 16 Mees. & Wels. 321; s. c. 12 Jur. 287, it was held (Pollock, C. B., dubitante), that money so deposited was money lent, and could not be recovered back after the lapse of six years from the time of deposit. See also, Berry v. Pierson, 1 Gill (Md.), 234. And where A received money to be invested in the payment of government fees for Texas scrip, placed in his hands for location, held that he was bound to do it within a reasonable time, and after the lapse of that time the statute began to run. Mitchell v. McLemon, 4 Texas, 151. But see ante, § 179, note.]

CHAPTER XVIII.

REPLICATION OF FRAUD.

§ 183. It is a question of consequence whether the fact of fraud committed under circumstances which keep concealed a knowledge of the fact, and thus delay the assertion of a right beyond the time limited by the statute, may be replied as a bar to a plea of the statute in a court of law; provided an action is brought within six years from the time of the discovery of the fraud, or after the opportunity afforded of making the discovery. In regard to this subject, some of the cases make a marked and manifest distinction between a plea of the statute in a court of law and a court of equity. The reason offered by Lord Redesdale, why, if fraud has been concealed by one party, until it has been discovered by the other, and the statute shall not operate as a bar, is this: that the statute ought not in conscience to run; the conscience of the party being so affected, that he ought not to be allowed to avail himself of the length of time. Such is, without controversy, the settled doctrine of courts of equity.3

1 [Post, § 185.]

2 Hovenden v. Lord Annesley, 2 Sch. & Lef. R. 634.

8 See Coster v. Murray, 5 Johns. (N. Y.), Ch. R. 522, and Story's Eq. Jur.; Lewin on Trusts and Trustees, 617. [Michoud v. Girod, 4 How. (U. S.), 503; Hallett v. Collins, 10 id. 174; Phalen v. Clark, 19 Conn. 421. Ante, § 30. But a Court of Equity will not open accounts and sustain claims on account of fraud which are barred by the statute of limitations, without exercising great caution. Stearns v. Page, 7 How. (U. S.), 819; Couch v. Couch, 9 B. Mon. (Ken.), 160; Wagner v. Baird, 7 How. (U. S.), 234. And where a bill will lie for fraud after the remedy at law is barred, it must appear affirmatively, that the bill was filed within the statute period of limitation after the discovery of the fraud. Field v. Wilson, 6 B. Mon. (Ken.), 479. In Ferris v. Henderson a claim for services forty years old was sustained against a master, who had obtained them by falsely representing to the person who rendered them that he was a slave. 12 Penn. St. (2 Jones), 49. To avoid the bar of the statute the plaintiff must not only allege his ignorance of the fraud, but when and how he discovered it, and must offer satisfactory evidence to prove these averments. Carr v. Hilton, 1 Curtis (U. S.), 390. That the statute begins to run from the discovery of the fraud, see Stocks v. Van Leonard, Ga. 511; Lawrence v. Trustees, &c. 2 Denio (N. Y.), 577; Donnelly v.