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 [Campbell v. Beggs, 48 Penn. St. 524. 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, Barr (Pa.), 189. But where the duty is immediate, as on the collection of money to pay it over, the statute begins to run from the collection, the law looking upon the client's failure to make inquiry for six years, as laches, unless he has been deceived, overruling McDowell v. Potter, 8 Barr (Pa.), 189; Rhines v. Evans, 66 Pa. St. 192. Where the duty is not immediate and some time must elapse before negligence can be affirmed, the statute runs from and after the lapse of a reasonable time; and this time is for the jury to determine. Ibid.] If the client applies to his attorney and receives a false or evasive answer as to moneys collected, the statute will not run against the client's claims. Gleason v. Cuttle, 2 Grant (Pa.), 273. 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 purcha 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. 991 ser 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. And where a sheriff collects for several creditors upon successive attachments against a single debtor, the fund will be regarded as entire, and the statute does not run against each creditor from the time when his claim was collected, but begins to run when the whole is collected. Davy v. Field, 1 Abb. (N. Y.) App. Dec. 490.] 1 McNair v. Kennon's Ex'rs, 3 Murph. (N. C.) 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 bankbook, by one of the clerks in the bank. (Cowen, J., dissenting.) Downes v. Phoenix. Bank, &c., 6 Hill (N. Y.), 297. [But in Pott v. Cleg, 16 Mees. & Welsb. 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 Tex. 151. But see ante, §§ 115 and 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.2 Such is, without controversy, the settled doctrine of courts of equity.3 1 [Post, § 185.] 2 Hovenden v. Lord Annesley, 2 Sch. & Lef. 634. 3 See Coster v. Murray, 5 Johns. (N. Y.) Ch. 522, and Story's Eq. Jur.; Lewin on Trusts and Trustees, 617. [Michaud v. Girod, 4 How. (U. S.) 503; Hallett v. Collins, 10 Ib. 174; Phalen v. Clark, 19 Conn. 421; ante, § 30. But the fraud is not actual, but merely constructive, the statute applies. Wilmerding v. Russ, 33 Conn. 68. And 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. (Ky.) 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. (Ky.) 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, 8 Ga. 511; Lawrence v. Trustees, &c., 2 Denio (N. Y.), 577; Donnelly v. Donnelly, 8 B. Mon. (Ky.) 113; Long the court of law, 184. In support of the above doctrine in a case of Bree v. Holbreck1 has been relied on. replication, after setting forth the means by which the plaintiff had been defrauded, went on to state, that the plaintiff, at the time of the assignment, and of paying the money, was ignorant of the falsehood of the assertions, and of the fraud so practised upon him, and did not discover them until within the space of six years next before suing out the writ. Lord Mansfield was of opinion, that the replication had charged no fraud on the defendant, but said, "there may be cases which fraud will take out of the statute of limitations." This assertion of Lord Mansfield, it is true, was considered by Mr. Justice Spencer, in an important case in the State of New York,2 as the only instance in which such a position was ever advanced in Westminster Hall, and he thought that, as his lordship had an inclination to intrench on courts of equity, that mere dictum could not be regarded as authority. But Mr. Justice Story, in Sherward v. Sutton,3 considered that the above language of Lord Mansfield was not a mere dictum: Lord Mansfield must be understood to have spoken in the name of the court; and the leave granted to the plaintiff to amend, and reply fraud in the defendant, proved that the court entertained no doubt upon the principal point. In maintaining that fraud will take a case out of the statute in England, at law, the learned judge cited Short v. McCarthy, in which the case of Bree v. Holbreck was cited by counsel on both sides, without objection; and it was not in the slightest degree impugned by the court. Though the writer has not been able to meet with any direct decision in England upon this important question, it would seem, from the above indirect authorities in that country, in connection with others, that where there is concealed fraud on the part of the defendant, the plaintiff will not worth v. Hunt, 11 Ohio (N. S.), 194; Ormsby v. Longworth, Ib. 653; Walker v. Walker, 25 Ga. 76; Smith v. Talbot, 18 Texas, 774; Way v. Cutting, 20 N. H. 187; Lott v. Degraffenreid, 10 Rich. Eq. (S. C.) 346; Hunter v. Hunter, 50 Mo. 445; unless there is negligence on the part of the person who replies it. In Mississippi it is held that the statute runs from the commission of the fraut, unless there is such a relation of trust and confidence as to render it the duty of the defendant to disclose, in which case it runs only from the discovery. Wilson v. Ivy, 32 Miss. (3 George) 233; post, §§ 187, 188, and 191.] Bree v. Holbreck, Doug. 654. 2 Troup v. Smith, 20 Johns. (N. Y.) 33. 3 Sherwood v. Sutton, 5 Mason (Cir. Co.), 149. + Short v. M'Carthy, 3 Barn. & Ald. 436. lose his remedy.1 In Brown v. Howard,2 the plaintiff employed defendant, in 1808, to lay out money for him in the purchase of an annuity, and discovered in February, 1814, that the security provided by the defendant was void, within the defendant's own knowledge, at the time of the purchase. In January, 1820, plaintiff sued in assumpsit for breach of an implied contract to provide good security. It was held, that, the action proceeding on the contract and not on the fraud, the statute of limitations was a good bar. In this case, Dallas, Ch. J., said: "The plaintiff will not be without remedy, because he will only be nonsuited here, and may, if he deems it to his advantage, bring another action, the ground of which may be fraud; though on the propriety of such a step we give no opinion: but in Bree v. Holbreck, it is laid down, that, in cases of fraud, the limitation only runs from the time when the fraud is discovered." In Clark v. Hougham,3 decided in the King's Bench, in 1823, Bailey, J., says: "It is not necessary in this case to consider whether the mere existence of fraud in the transaction has the effect of barring the statute of limitations, because that question is not raised by the pleadings. In order to take advantage of the alleged fraud, there should have been a special replication." By Holroyd, J.: "It is quite unnecessary, under the circumstances of this case, to determine whether the existence of fraud bars the statute, and indeed it would be impossible to decide that question upon these pleadings." By Best, J.: "The question of fraud has been decided by the jury, who, acting upon evidence before them, found their verdict for the plaintiff. By that finding we are concluded. I agree that we are not called upon to decide in this case, whether fraud, per se, is in answer to the statute of limitations, but I think if there had been a special replication of the fraud put upon this record, the defendant's second plea would have been answered, and that we might so have held without disturbing any of the former decisions upon that subject. In all those cases the fraud was complete, and the cause of action arose six years before action brought; but here the fraud is continued to a period far within six years. The rule of construction applicable to this statute in courts of law and in courts. 1 See Browne on Actions at Law, 67. 2 Brown v. Howard, 3 B. & Bing. 73. 3 See Bolton, ex parte, 1 Mont. & Ayr. (Bankruptcy) 60; Clark v. Hougham, 3 Dowl. & Ry. 330. |