ments, the statute does not begin to run until the entire claim is collected, or until the matter is terminated by complete success or failure, unless he notifies the client of such collections, in which case the statute begins to run from the time of notice. If an attorney fraudulently conceals the fact that a demand has been collected by him, the statute does not begin to run against his client until the discovery of the fraud by him; and if he sends the claim to another State for collection, and upon being inquired of by his client informs him that it is not collectible, when in fact it has been collected, the statute does not run against his client until the discovery of the fraud, even though the answer was given by him in good faith." 1 McCoon v. Galbraith, 29 Penn. St. 293. 2 Wickersham v. Lee, 83 Penn. St. 416. Morgan v. Zener, 83 Penn. St. 305. CHAPTER XI. AGENTS, FACTORS, &C. SEC. 123. Agents, Factors, &c. SEC. 123. Agents, Factors, &c. Where goods are consigned to an agent for sale, on commission or otherwise, in the absence of any special contract relative thereto the law implies a contract on his part to account for such goods as are sold, pay over the proceeds to his principal, and return such as are unsold, on demand; and an action will not lie against him, as a general rule, and the statute does not consequently begin to run against the principal, until an account has been rendered or a demand has been made.1 In a Pennsylvania case,2 the plaintiffs furnished to the defendant, in 1856, an invoice of medicines to be sold on commission, and accounted for at prices fixed by a schedule. The defendant never rendered any account nor returned the goods, and in 1865 the plaintiff brought an action therefor, and the defendant set up the statute to defeat the claim. The court held that the statute did not apply, as it did not begin to run until an account had been rendered or a demand made upon the defendant by the plaintiff. The principle upon which these cases rest is, that, inasmuch as no time is agreed upon within which an account is to be rendered, or payment to be 1 Clark v. Moody, 17 Mass. 144; Topham v. Braddick, 1 Taunt. 572; Collins v. Benning, 12 Mod. 444; Baird v. Walker, 12 Barb. (N. Y.) 298; Holden v. Crafts, 4 E. D. Sm. (N. Y. C. P.) 490; Sawyer v. Lappan, 14 N. H. 352; Hutchins v. Gilman, 9 id. 360; Taylor v. Bates, 5 Cow. (N. Y.) 379; Paschall v. Hall, 5 Jones (N. C.), Eq. 108; Hays v. Stone, 7 Hill (N. Y.), 128; Krause v. Dorrance, 10 Penn. St. 462. Where money is deposited with a person for a specific purpose as, to be invested in certain property or loaned upon interest, although no time is specified within which he shall account, he is only required to account on demand, and the statute does not begin to run against the principal until a demand has been made. Joseph v. Baker, 16 Cal. 173. A distinction of great importance exists between such an agent and one who is merely intrusted with the collection of money, which arises out of the contract necessarily implied by law. In the former case, the only contract which can be implied is, that he will invest or loan the money judiciously, and account to the principal therefor on demand; while in the latter case the contract implied is, that he will collect the money and pay it over to his principal as collected. Hart's Appeal, 32 Conn. 520. And although in some instances, as in the case last cited, the rule may operate harshly, yet the fault is not with the law, but with the principal who leaves important interests to be controlled by an implied, instead of an express, contract. 2 Jayne v. Mickey, 55 Penn. St. 260. made, it will be presumed that such account was to be rendered and payment made upon demand by the principal, and that the agent stands to the principal in the relation of a trustee, rather than in that of a debtor, until by a demand upon him the principal has put an end to the trust. But this presumption does not arise where a special contract exists, providing the period or periods within which an account shall be rendered or payments made is fixed upon, and in that case a right of action, the statute will begin to run from such periods. In the case of an open agency, it seems that a demand may be presumed after the lapse of a reasonable time. But in all cases of an open, continuing agency, a demand must either be proved or presumed.1 The presumption is held in some of the States to arise so as to dispense with proof of a demand in the case of a collecting agent who fails to notify his principal, after the lapse of a reasonable time after the collection is made; while in others, and by far the larger number, it is held that the cause of action arises from the time when a demand is made upon the agent, and not from the time when the money is received by him. In Connecticut, it is held that no demand is necessary 1 HEATH, J.: Topham v. Braddick, 1 Taunt. 572; Johnston v. Humphrey, 14 S. & R. (Penn.) 394; Judah v. Dyott, 3 Blackf. (Ind.) 324; Armstrong v. Smith, 2 id. 251; Holden v. Crafts, 4 E. D. Sm. (N. Y.) 496; Ferris v. Parris, 10 Johns. (N. Y.) 285; Sawyer v. Tappan, 14 N. H. 352; Buchanan v. Parker, 5 Ired. (N. C.) L. 597; Staples v. Staples, 4 Me. 532; Buchan v. James, 1 Speers Eq. (S. C.) 375; Satterlee v. Fraser, 2 Sandf. (N. Y. Superior Ct.) 142; Walradt v. Maynard, 3 Barb. (N. Y.) 584; McNair v. Kennon, 3 Murph. (N. C.) 144; Lever v. Lever, 1 Hill (S. C.) Eq. 47; Taylor v. Spears, 8 Ark. 440. In Stamford v. Tuttle, 4 Vt. 82, and Collard v. Tuttle, id. 491, it was held that when a demand is necessary to perfect a right of action, and put the statute of limitations in motion, a demand would be presumed from the lapse of time, and such dealings between the parties as render it improbable that it should be neglected. See also Raymond v. Simonson, 4 Blackf. (Ind.) 77. 2 Drexel v. Raimond, 23 Penn. St. 21. See also Jett v. Hempstead, 25 Ark. 462. The doctrine of this case is opposed to that of McDowell v. Potter, 8 id. 190, in which it was held that, "before an agent can be permitted to avail himself of the statute, he must prove that he has performed his duty. His omission to do so amounts to such concealment of the state 3 Merle v. Andrews, 4 Tex. 200; Gardner v. Peyton, 5 Cranch (U. S. C. C.), 560; Buchanan v. Parker, 5 Ired. (N. C.) 507; Judah v. Dyott, 3 Blackf. (Ind.) 324; Lever v. Lever, 1 Hill (S. C.) Eq. 62; Taylor v. Spears, 8 Ark. 429; Hyman v. Gray, 4 Jones (N. C.) L. 155; Topham v. Braddick, 1 Taunt. 571; Green v. Johnson, 2 G. & J. (Md.) 389; Dodds v. Vannay, 61 Ind. 89; Egerton v. Logan, 81 N. C. 172. In Green v. Williams, 21 Kan. 64, it was held that, in the absence of any contract between the principal and his agent as to when or how the money collected by him is to be sent, the statute does not begin to run until after demand and refusal. in the case of an ordinary collecting agent, and that the statute begins to run from the time when the money was received by the agent.1 In this case the court put its decision upon the ground that money collected by an agent is recoverable at law, and only at law, by the ordinary legal remedies. In other words, that, in the ordinary relation of a principal and a collecting agent, the agent becomes a debtor for the money as soon as it is received, and that may properly be charged in account against him, and recovered by action of book account where that form of action exists, or in assumpsit at the election of the principal, and that the agent cannot properly be said to take or hold the money as a trustee under an express trust.2 The difference of 1 Hart's Appeal, 32 Conn. 520; Lawrence University v. Smith, 32 Wis. 587. In Reitz v. Reitz, 14 Hun (N. Y.), 536, the defendant in 1854 was intrusted by the mother of the plaintiff and defendant with certain money, and that with this he purchased certain real estate and took the title in his own name, and afterwards, with the consent of his mother, he erected buildings thereon and collected the rents. The mother died in 1866, leaving the plaintiff and defendant as her only children. The court held that the statute had run against all claim for the money in the defendant's hands before his mother died. "An agency," said BARNARD, P. J., "is not such a technical trust as to prevent the application of the statute of limitations." Renwick v. Renwick, 1 Bradf. (N. Y. Surr.) 234; Murray v. Coster, 20 Johns. (N. Y.) 576; Lillie v. Hoyt, 5 Hill (N. Y.), 396. 2 In this case the circumstances were such as to induce the court to bend the rules as far as possible in favor of the plaintiff. The amount involved was over $47,000, and the amount which was lost in consequence of the statute bar was nearly $37,000, all of which was admitted to have been received by Mr. Bull, the agent, in his lifetime, in money, as the proceeds of the renting and sale of the plaintiff's real estate in Ohio, and there was no pretence or claim that it had ever been paid over to her. He was appointed her agent on the 30th of May, 1839, with a power of attorney authorizing him to take charge of all the property, sell or rent the same, renew contracts, receive the money for the rent or sales of the same, &c. In 1843, by the death of her mother, the plaintiff became the owner of a large lot of other real estate in Ohio, and in 1851 she executed another power of attor ney to the deceased, authorizing him to take charge of this property to the same extent that she could do herself. The property had for a long time prior to the appointment of the deceased as agent in 1839 been in the charge of agents in Ohio, and their agency was continued during the lifetime of Mr. Bull, so that all he had to do in the matter was to take general control of the matters, execute the conveyances, and receive the money forwarded by them to him. In 1841 he rendered an account to the plaintiff, and paid over to her all the money received by him up to that time. From the time of the settlement in 1841 down to the day of Mr. Bull's death in 1861, he received of the plaintiff's money $137,328.79, and paid out for her during that period $99,784.16, leaving a balance due her of $37,535.15. The statute of limitations was set up against all of this claim except that which had accrued in the last six years preceding Mr. Bull's death, and the plea was sus tained, and the plaintiff's recovery limited to $11,976.47. "The question in this case," said HoSMER, J., "is, whether the statute of limitations applies to so much of the appellant's claim against the estate of Mr. Bull as was of more than six years' standing at the time of his death. Counsel for the appellant insist that it does not apply, and they cite in support of their claim that class of English and American cases in which it is held that the statute does not run in favor of trustees, stewards, and certain confidential agents, so long as the confidential relation exists. They also opinion, whether a right of action exists against an agent until a demand has been made upon him, has arisen upon the question as cite cases against persons having money in their hands under such circumstances that they are not bound to pay it over to the owners of it until after it has been demanded, in which case, as the money cannot be said to be legally due until after such demand, the statute, of course, does not begin to run until that time. We have not deemed it necessary to examine these cases particularly, as we are of opinion that they do not apply to the facts of this case. We prefer this course, because we are not at this time prepared to say that the rule against stewards and certain confidential agents as administered in England applies here to the full extent claimed by the appellant; and as we think none of the cases go so far as counsel ask us to go in this case, it appears to us the most proper course to leave the law upon this subject to be considered when the question arises under such circumstances as render it necessary to determine it. "If the question in this case had arisen previous to the statute of 1855 (p. 69 of the acts of that year), giving to courts of equity concurrent jurisdiction with courts of law of all matters remediable by action of account, to be proceeded with in such courts of equity to final decree, according to the common course of proceedings in courts of equity,' it is very clear that the statute of limitations would have been a direct and positive bar to the prosecution of the claim. It is only by virtue of that statute that the appellant claims that a bill in equity is a concurrent remedy with an action of account, and might now be brought for her demand; and although an action of account as well as book debt and assumpsit is barred by the statute, yet the appellant insists that a bill in equity is not, and as she is now at liberty to prosecute her demand on the equity side of the court, she has a right to the decree of the court in her favor, although the claim is barred at law. The action of account, book debt, or assumpsit, or whichever of them would have lain for this demand, were and now are perfectly adequate remedies for the claim, and, except so far as the act of 1855 has altered the law in respect to matters remediable by the action of account, where there is adequate remedy at law courts of equity have no jurisdiction. We have the case, then, in which previous to 1855 an action at law was the only remedy for the enforcement of the claim, and in which such an action may still be maintained, since by that act a bill in equity is only made a concurrent remedy with an action of account. Now, as we have seen, if an action at law had been brought, or the demand had rested as a mere demand at law to be prosecuted before cammissioners on an insolvent estate, it is not and cannot be denied that the statute of limitations would apply to the claim, since the stat ute is made directly applicable to the actions of account, book debt, and assumpsit founded on such a claim as this, which are the only actions that could have been brought for it. Rev. Stat. tit. 31, § 3. But if such a claim was absolutely barred by the statute of limitations as it existed previous to 1855, and is still barred by the express language of the statute if an attempt should be made to enforce it by an action at law, can it be regarded as the intention of the act of 1855 to repeal the limitation in case a party under the authority of that act chose to prosecute his claim on the equity side of the court, while it confessedly would be barred if prosecuted at law? In Robbins v. Harvey, 5 Conn. 335, it was held that where assumpsit was brought for a claim which was the ordinary subject of book debt, the statute of limitations in regard to book debts applied to the case, on the ground that the statute was intended to apply not merely to the form of the action, but to the nature of the indebtedness; and it would seem but a fair application of that principle to hold that the statute creating a bar to an action of account is equally applicable to the account which is attempted to be enforced by a bill in equity, which is now made by statute a concurrent remedy with an action of account. Especially would this seem to be so in Connecticut, where we have been in the habit of treating the statutes of limitation with rather more favor |