the contrary.1 Sir William Grant, in Beckford v. Wade,' says, that if the statute of limitations intended to leave open every equitable question to perpetual litigation, it was ill calculated for obtaining its professed purpose, and of preventing many vexatious and expensive suits at law and in equity, of which the preamble complains. That such is not the intention is rendered clear by Chancellor Kent, in Kane v. Bloodgood, in which, after reviewing the decisions on the subject from a remote period, he concludes that trusts intended by courts of equity not to be reached or affected by the statute of limitations are those technical and continuing trusts to which we have already referred, and which are not cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of a court of equity. In all cases of trusts, he makes it appear, that, whether or not they are affected by that statute depends upon whether or not they are cognizable at law. Those which are so cognizable are not to be withdrawn from the operation of the statute. The reciprocal rights and duties, founded upon the various species of bailment, and growing out of those relations, as between "hirer and letter to hire, borrower and lender, depositor and the person depositing, a commissioner and an employer, and receiver and a giver in pledge," are cases of direct trust; and are contracts, which, as Sir William Jones says, "are among the principal springs and wheels of civil society."4 Mr. Justice Kennedy, in giving the opinion of the Supreme Court of Pennsylvania, in Finney v. Cochran,5 recognizes the doctrine as thus laid down by Chancellor Kent, and says that to hold that the statute is not applicable to any cases which may, even with propriety, be denominated cases of trust, would, in a great measure, defeat the plain and manifest intention of the legislature. "A great proportion of the money transactions of the ordinary business of life, where no instrument under seal passes between the parties, would 1 Per the Chancellor, in Ex'rs of Fisher v. Ex'rs of Tucker, 1 M'Cord (S. C.), Ch. 174. And the Chancellor cites, among other authorities, Hovenden v. Lord Annesley, (1 Scho. & Lefr. Ch. 630), in which Lord Redesdale says: Courts of equity are bound to yield obedience to the statute of limitations upon all legal titles and legal demands." 2 Beckford v. Wade, 17 Ves. 95. 3 Kane v. Bloodgood, 6 Jolins. (N. Y.) Ch. 110; recognized in Farnam v. Brooks, 9 Pick. 242. 4 Jones on Bailments, 2. Finney v. Cochran, 1 Watts & Serg. (Penn.) 112. Cases referred to App v. Driesbach, 2 Rawle (Penn.), 302; Lyon v. Marclay, 1 Watts, Ib. 275. be excluded from its operation, and a flood of litigation arise, after a lapse of six years, which, owing to the length of time, it would be impossible in many instances to determine, according to truth. and justice, between the parties." The defendant, in this case, had received money on account of the plaintiff, a portion of which was to be applied to reimburse the defendant for money paid by him in the discharge of an accommodation indorsement for the plaintiff. The surplus he was bound to have paid without delay; and, for his neglect or failure to do so, the plaintiff might have sued for the recovery of it immediately; for, in the view of the court," it had become a debt due to the plaintiff, which the defendant was bound to pay him, without even a demand being made for it." 1 The distinction between such trusts are actionable at law, and such as are exclusively within the jurisdiction of a court of chancery, in respect to the application of the statute of limitations, was recognized by Mr. Justice Washington in Wisner v. Barnet,2 where he says that the rule applicable to this subject appeared to him "to be very intelligibly and directly laid down in the case of Kane v. Bloodgood." In cases of implied trusts in relation to personal property, or to the rents and profits of real estate, where persons claiming in their own right are turned into trustees by implication, the right of action in equity will be considered as barred at the end of the time limited by the statute, in analogy to the limitation of a similar action at law. After a ward comes of age, the fiduciary relation of the guardian ceases; they stand as debtor and creditor; and the claim of the ward is within the statute. If a judgment be as 1 [So where money is paid to a creditor, to be applied “on note,” the statute does not begin to run till a refusal so to apply it. Sawyer v. Tappan, 14 N. H. 352.]. 2 Wisner v. Barnet, 4 Wash. (Cir. Co.) 631. See also Walker v. Walker, 16 Serg. & Rawle (Penn.), 379; Rush v. Burr, 1 Watts (Penn.), 120; Doebler v. Snavely, 5 Ib. 225; Spotswood v. Dunbridge, 4 Hen. & Munf. (Va.) 139; Singleton v. Moore, Rice (S. C.), Eq. 110; Talbot v. Todd, 5 Dana (Ky.), 199; Houseal v. Gibbs, 1 Bail. (S. C.) Eq. 402; Cooke v. Williams, 1 Green (N. J.), 209; Paige . Hughes, 2 B. Mon. (Ky.) 438; Stephen v. Yandle, 3 Hayw. (N. C.) 221; Ramsey v. Dens, 2 Desauss. (S. C.) 238; Overstreet v. Bate, 1 J. J. Marsh. (Ky.) 370; Pynson v. Ivey, 1 Yerg. (Tenn.) 297, also 361; Van Ryn r. Vincent's Executor, 1 M'Cord (S C.), Ch. 314; Mussey v. Mussey, 2 Hill (S. C.), Ch. 496. [Smith v. Calloway, 7 Blackf. (Ind.) 86. Lexington v. Ohio Railroad Co., 7 B. Mon. (Ky.) 556.] 4 Hawley v. Cramer, 4 Cow. (N. Y.) 717. [Sheppards v. Turpin, 3 Gratt. (Va.) 373; Wylly v. Collins, 9 Ga. 252.] Bali v. Towson, 4 Watts & Serg. (Penn.) 557; Green, Executor v. Johnson, 3 Gill & Johns. (Md.) 389. The statute runs in favor of the guardian from the final signed as security to indemnify the assignee for the liability he is under for the assignor, and the assignee assign it to another who has a knowledge of the facts, the holder of it having collected the money, is a trustee, and upon the first assignee being relieved of his liability, the plaintiff is entitled to recover the money from the last assignee. And the right of action accrues when the liability of the first assignee ceases; and from that period the statute begins to run. If one place money or goods in the hands of another, upon an agreement that the bailee shall keep them safely, and restore them when demanded by the bailor, though it is a direct trust to which the statute will not apply; yet, if one receive money or goods of another, believing that they belonged to him, when in fact ex æquo et bono they belonged to a stranger, — that is an implied trust, and the stranger is entitled to recover, and he may be barred by the statute of limitations.2 settlement. Alston v. Alston, 34 Ala. 15. And so too against the guardian's claim upon the estate of his ward for expenses, from the termination of the guardianship. 33 Ala. 214. And if ever an unauthorized person assumes to act as guardian, and receives money, the statute begins to run immediately, if there be no existing disability. Johnson v. Smith, 27 Mo. (6 Jones) 591. 1 Poe v. Foster, 4 Watts & Serg. (Penn.) 351. 2 Buchan v. James, 1 Speer (S. C.), Eq. 375. [Where one buys property with the money of another, the trust thereby raised is an implied one in favor of the owner of the money, and is subject to the statute of limitations. Murdock v. Hughes, 7 S. & M. (Miss.) 219. And the statute runs against a claim for an account for the rents and profits of land by one tenant in common against his co-tenant in possession. Wagstaff v. Smith, 4 Ired. (N. C.) Eq. 1. See also McDonald v. Sims, 3 Kelly (Ga.), 383; White v. White, 1 Md. Ch. Decis. 53; and post, § 181. And against one partner who seeks an account from his co-partner. Taylor v. Adams, 14 Ark. 62. But in Georgia it has been held otherwise, at least so long as there are outstanding debts due to or from the copartnership. Hammond v. Hammond, 20 Ga. 556. A settlement of the account of the treasurer of a school district, certified by the proper officer, cannot be opened after six years. Porter v. School Directors, &c., 18 Penn. St. 144. Where a trustee would be barred, so also would his cestui que trust. Sheppards v. Turpin, 3 Gratt. (Va.) 873, ubi sup.; Herndon v. Pratt, 6 Jones, Eq. (N. C.) 327.] CHAPTER XVII. AGENCY AND FACTORAGE. 179. A VERY common, and no less important, fiduciary relation in mercantile law is that of principal and agent, and consignor and consignee. If goods are consigned to a factor for sale, the law raises a contract to account for such as are sold; and according to the opinion of Lord Mansfield and the rest of the court, in Topham v. Braddick,1 no action for not accounting lies till after demand made, and of course, if that be so, the statute does not begin to run in favor of the consignee till that time. It has been shown, that if a promissory note is payable on demand, a previous demand is not necessary; 2 but Lord Mansfield, in the case referred to, said, "the plaintiff was to do a collateral thing," and, therefore, upon the authority of Collins v. Benning, no debt was created till demand. The rule is thus stated by a learned judge of one of our State courts: If A place merchandise in the hands of B, to be sold for the use of A, and B, not selling, retain possession for seven years, when A demanding a return, and being refused, brings trover or replevin for the goods, the plea of the statute would be no bar to a recovery; because until the demand, he had no cause of action, and therefore the case is not within the letter of the statute. But if the demand and refusal had been within one year after the delivery, then the plea of limitation would be a bar; a cause of action existing from the time of the demand is clearly within the express terms of the statute. But the rule, as above 1 Topham v. Braddick, 1 Taunt. 571. [Hyman v. Gray, 4 Jones (N. C.), Laws, 155.] 2 Ante, § 95. 3 Collins v. Benning, 12 Mod. 444. ♦ Heath, J., said, "A demand must be either proved or presumed." Lawrence, J., said he remembered an action of trover between Lord Bute and Mr. Wortley Montague, for furniture left for many years in a mansion-house: the statute of limitations was set up; but the demand and refusal were of recent date, and the plaintiff recovered. 5 Per Dorsey, J., in giving opinion of the court, in Green v. Johnson, 3 Gill & Johns. (Md.) 389. [Where money was placed in the hands of an agent to purchase slaves, and he neglected to do so, it was held, in an action for the money, that the statute did not begin to run until a demand for the money by the principal. Buchanan v. Parker, 5 Ired. (N. C.) 507. But see post, § 182, note.] laid down, is clearly subject to qualification, as a notification by a bank to a depositor, that his claim will not be paid on demand at the counter, dispenses with the necessity of a demand, as preliminary to the right to sue.1 So, where there is a joint purchase of goods, and one of the purchasers is to account to the other for a share of them, or of the net proceeds, the right of action is perfect as soon as an account of sales is rendered.2 180. As Mr. Chief Justice Parker, in giving the opinion of the Supreme Court of Massachusetts, in Clark v. Moody, deemed this subject of sufficient importance to demand a considerate exposition of the law, it here follows: "We must understand that the merchandise was sent on to be sold, without any special instructions from the plaintiff, as to the disposition of the proceeds, and must gather the understanding and intention of the parties, as well as we can, from their acts and doings, relative to the subject-matter of the contract between them. "The general rule laid down in the books is, that when goods are delivered to a factor, to be sold and disposed of for his principal, the law implies a promise on the part of the factor that he will render an account of them, whenever called upon by the principal; and if he refuses to account, he is liable to an action of assumpsit for the breach of his implied promise. It seems to have been formerly doubted, whether any action but account would lie against a factor; and afterwards it was thought that an express promise to account was necessary to maintain assumpsit. But the doctrine now settled is, that the undertaking to act as bailiff is an undertaking to account; and Lord Holt, in the case of Wilkin v. Wilkin, 1 Salk. 9, referred to by the plaintiff's counsel, says, wherever one acts as bailiff, he promises to render an account. Although in Comyns on Contracts, 261, the inference from this case is made to be, that the factor is liable only on demand, or on refusal to pay money, yet if the general principle adopted by Holt is right, that the mere acting as bailiff is promising to account, it would not seem that a demand was, in all cases, necessary to enable the principal to maintain his action. Indeed, such a limitation of the liability of a factor would be exceedingly inconvenient and tend to the embarrassment of trade. For, if a merchant, who sends his 1 Farmers' and Mechanics' Bank v. Planters' Bank, 10 Gill & Johns. (Md.) 422. 2 Murray v. Coster, 20 Johns. (N. Y.) 576. Clark v. Moody, 17 Mass. 145. |