to what contract is to be implied on the agent's part, when he assumes the relation to his principal. than has been the case elsewhere. Our statute in terms merely applies to an action brought for the recovery of a claim or debt of more than six years' standing, but this word 'action' has never been construed in any narrow and technical sense as applying only to a demand made by a plaintiff, but has been extended to a plea of set-off, on the ground that the spirit of the act embraces an outlawed claim which a party attempts to avail himself of by a set-off, as much as the same claim when the party attempts to enforce it by a direct suit; and it is only on the ground of its being within the object and spirit rather than within the letter of the statute that claims presented to commissioners on insolvent estates are held to be subject to the statute of limitations. 1 Swift's Dig. 307. 66 'We have never adopted the expedient which has prevailed to some extent in other States, of taking cases out of the statute upon some doubtful or equivocal acknowledgment, but have always held that the party must have intended to relinquish its protection, or that its provisions must be applied; and our courts have called it a beneficial statute, and have looked upon the lapse of time prescribed as a bar to the bringing of an action as furnishing a presumption of payment rather than as an arbitrary statutory bar to a valid claim. JUDGE HOSMER quotes with approbation the language of CHIEF JUSTICE PARSONS, in which he lays down the principle that the presumption from the lapse of time is that the defendant has lost the evidence which would have availed him in his defence if seasonably called on for payment; and JUDGE DAGGETT expresses his satisfaction in rejecting the grounds on which an attempt was made to evade it. Lord v. Shaler, 3 Conn. 131; Marshall v. Dolliber, 5 id. 480; Weed v. Bishop, 7 id. 128; Peck v. Botsford, id. 172. "But coming to the appellant's claim in this case, is it one to which the statute properly applies? Now, we do not understand that the counsel for the appellant deny that the items of the account are all Formerly, it was thought that the proper subjects of charge on book, and might be recovered in an action of book debt. Indeed, we do not see how, consistently with their own claim upon the record, this could be denied. But it is said that the claim is pursued only as an equitable one, in the nature of a bill in equity for an account against a confidential agent; and that to such a claim the statute does not apply. The deceased is said to have been a trustee for the appellant, and his case is likened to that of the steward of an estate. But, in regard to the money unaccounted for, wherein was he a trustee or steward any more than any collecting agent who has the money of his principal in his hands may be said to be such? And it surely would not be claimed that the statute of limitations does not apply in favor of an ordinary agent who has his principal's money, and whose only duty in regard to it is to pay it over. The auditor's report shows that all the money received by Mr. Bull, which he has not accounted for and paid over to the appellant, consists of sums that were remitted to him by Miss Hart's agents in Ohio. And the only duty that devolved on him in regard to this money was to get the drafts cashed and pay over the avails to his principal. Can there be any doubt, supposing this to be all there is in the case, that on the receipt of any sum from one of the appellant's Ohio agents by the agent here, that sum immediately became a debt against the agent here, for which book debt or assumpsit might have been brought? Is not the duty of a collecting agent to seek his principal and pay over the money collected as obvious and clear as any duty he has to perform? An action will lie against a sheriff who collects money on execution without any previous demand. And in respect to the moneys collected of the Ohio agents, it would seem that Mr. Bull could stand upon no higher ground. Dale v. Birch, 3 Camp. 347; Jefferies v. Sheppard, 3 B. & Ald. 696. But if an action could have been brought for this money without a previous demand, then, as the rule must be reciprocal, the statute commenced running at the time 66 1 account was the only remedy against an agent, and later, that assumpsit could not be maintained unless there had been an express promise to account. But," says PARKER, C. J., in a well-considered Massachusetts case, "the doctrine now settled is, that the undertaking to act as bailiff is an undertaking to account; and LORD HOLT says,2 whenever one acts as bailiff, he promises to render an account; ' although,' he adds, in Comyn on Contracts the inference from this the money was received. Lillie v. Hoyt, 5 Hill (N. Y.), 395. It was suggested that there were taxes and other expenses to be paid out of these funds. This, however, does not appear, and the fact that the money was remitted to Mr. Bull by other agents of Miss Hart residing in Ohio, where the lands were situated, raises a strong presumption that only the net avails, after all charges of this sort had been deducted, were sent to him, so that his only duty must have been to pay over the sums as they were received. We do not see, therefore, how Mr. Bull's condition was anything other than that of an ordinary collecting agent; and if we are correct in this, there can be no doubt that the statute of limitations applies to the case. "But we do not see how it was possible for the appellant to recover in this case before the auditor that portion of her claim which is of more than six years' standing, on another ground, whatever might have been the case before the commissioners. No doubt, on a trial before commissioners on an insolvent estate, it is open to a party to make out either an equitable or legal claim, and on his doing either he is entitled to an allowance of it, since in that tribunal there are no plead ings to embarrass a claimant, and the commissioners must have equitable as well as legal powers, or they could not do justice in all cases. But when a case comes by appeal from the commissioners to the superior court, although there are of course the same equitable and legal powers in the court, yet by the rules of practice which prevail in that court the claimant, where he is the appellant, must give the opposite party specific notice of his claim by filing what are called the reasons for his appeal. In this case the appellant might have stated her claim in such a manner as to entitle her to a recovery whether it was an equitable or strictly legal one. But she obviously should be confined in her proof to the reasons she chose to give, since otherwise the rule requiring her to give reasons, instead of being of any benefit whatever to the appellees, would operate as a snare to mislead and entrap them. But the reasons in this case expressly state that the account presented to the commissioners, the disallowance of which is complained of, was due to the appellant by book; and she makes profert of her book in the precise form that has, time out of mind, been used in ordinary declarations in an action of book debt, and does not state her claim in any other form or as arising in any other way. How, then, could the auditor treat the claim in any other way than as a claim at law like any other book debt? And as the statute of limitations is made directly applicable to the action of book debt, and is held to apply to a debt by book in whatever form presented, it appears to us that there is no way of avoiding the application of the statute without wholly departing from the claim which the appellant has made upon the record. There was an attempt to avoid this result by claiming that the language of the second reason for the appeal was general enough to justify proof of any just claim, whether legal or equitable; but this, we think, is not so. Indeed, there is really but one reason given for the appeal. What is called the second reason sets up no new or different claim from the first. It expressly refers to the claim made in the first reason, and is a mere allegation that the commissioners rejected it when they should have allowed it. "We are of opinion, therefore, that so much of the appellant's claim as was of more than six years' standing at the time of the death of Mr. Bull cannot be recovered against his estate." 1 Clark v. Moody, 17 Mass. 145. 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 is in all cases necessary to enable the principal to maintain his action. Indeed," he says, "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 goods to a foreign country to be sold can have no right to call for his money, the proceeds of his goods, until he has sent abroad to make a demand, the risk of loss from the failure of factors would be considerably increased, and the disposition to trust them proportionably impaired. Generally the consignor of goods accompanies his consignment with directions how to apply the proceeds: either to pay them over to a third person; or to remit in bills, or in merchandise, or in specie; or to hold them to answer his future orders and in these cases there can be no difficulty. For the factor cannot be liable until he has actually or impliedly broken his orders. I say impliedly, for if the banker should become bankrupt or insolvent, with the goods of the principal or their proceeds in his hands, so that he is disabled from remitting them, or otherwise appropriating them according to the instructions of the principal, there seems to be no reason why an action would not immediately lie against him; by analogy to the common-law principle, that when a duty is to arise upon a demand, and the party liable has disabled himself from performing, the necessity of a demand ceases. And if this were not so, creditors here, who could not for a long time cause a demand to be made, would have no opportunity of securing themselves out of the effects of the factor in this country; while creditors of a different description, but not more meritorious, would meet with no impediment in securing their debts. "The practice here has conformed to this principle; for many instances are known to have occurred, of actions brought and sustained against factors in foreign countries, although no demand had been previously made upon them to render an account. And it is probably upon this ground, if at all, that a principal may prove his claim against his factor, under a commission of bankruptcy in England, although no demand had been made upon him; so that the debt was contingent according to the general liability of factors. It is also the duty of factors to account to their principals in a reasonable time, without any demand, in cases where a demand would be impracticable or highly inconvenient, so that a factor abroad, who should receive goods to sell, without 1 In Green v. Williams, 21 Kan. 64, it was held that in the absence of any agree. ment between a principal and his agent residing in another State, as to when or how money collected by him shall be sent to the principal, the statute does not begin to run in favor of the agent until a demand has been made upon him for the money, or at all events until directions have been given him as to how it shall be sent. special directions as to the mode of remittance, would be held, according to the course of business, to give his principal information of his progress in the transaction; and if he should neglect unreasonably to forward his account to his employer, this negligence would be a breach of his contract, and subject him to an action. So, if he should render an untrue account, even without any intention of fraud, claiming greater credit than he was entitled to, so that the balance shown was not true, we conceive the principal would have a right of action, without a demand. For he would not be obliged to submit to such charges as the factor should choose to make, or to wait, perhaps at the risk of his debt, until his agent should voluntarily correct his account, and acknowledge a just balance. But if the factor should receive and sell the goods, without any special orders as to remittance, upon an understanding, express or implied, that he is to hold the proceeds to the order of his principal; and he does nothing in violation of those orders, or to disable himself from complying with them when they shall be received; and transmits a true account of sales, in a reasonable time, according to the course of business, and is ready to remit or answer drafts upon him, we think that no action will lie against him for the balance in his hands, for his contract is to sell and render an account, and he ought not to be held to remit at his own risk; and he cannot remit at the risk of his principal, unless in compliance with instructions. It was urged in argument, that, as the defendants had stated an account and acknowledged a balance, they were indebted for that balance, and that a right of action immediately accrued without demand, as in other cases of admitted debt. It may be so, where there is nothing in the case to control the legal presumption. But if the course of business between the parties, or any evidence accompanying the account, shows a contrary implication, the presumption would fail. "In the case before us, the referees state that, when the account was sent on, which acknowledges the balance, it was accompanied by a letter from the defendants, in which they state that they hold the balance for the order of the plaintiff. This declaration is repeated in the following month; and it appears by the account stated by the referees that all the proceeds, except the balance acknowledged, had been paid by drafts from the plaintiff. These facts, with nothing of a contrary complexion, go far to show that the consignments were accepted with an understanding that the proceeds were not to be remitted without orders from the consignor. "The case in this view seems to be at least as strong as that cited from 10 Johns., in which it was decided that the consignee was not liable in the action, because he had committed no breach of trust or duty. It appeared in that case to be the usage for the consignor to direct the mode of remittance; and it probably is the general practice 1 Ferris v. Parris, 10 Johns. (N. Y.) 285. everywhere. Such practice, together with the conduct of the defendants in the case before us, may justify the conclusion that this consignment was made and accepted conformably to this practice. But this is a fact to be stated by the referees, and not by the court. If they determine, from the evidence in the case, that the understanding of the parties was, that the consignor was to direct the remittance, to draw for the proceeds, or otherwise appropriate them, then the defendants were not liable to the suit; and of course not to the costs, unless they were negligent in transmitting their account, or upon another ground they rendered themselves liable.1 "It has been stated, as one of the grounds of the liability of a factor, that he should have transmitted a false account, or one misrepresenting the balance in his hands. In the account transmitted by the defendants, the balance stated is little more than half the amount found by the referees to be due. Prima facie, this shows a wrong statement of account, by which the plaintiff was not bound to abide. If he had drawn for a larger sum, his bill might have been protested; if he had drawn for the balance as stated, it might have been an admission that the balance was true. He had, therefore, a right to sue, if it should turn out that there was a misstatement of the account. On the other hand, if it shall appear that the account was correct, and that the referees have increased the balance against the defendants improperly, or from considerations of supposed equity, contrary to their legal rights, the eventual balance found would not affect their liability when the suit was brought." From the cases cited in this and the previous section it may be said that the tendency of the courts is, to hold that, in the case of an ordinary collecting agent, whose only duty is to receive and pay over the money to his principal, the statute begins to run immediately upon the receipt of the money, regardless of the question whether a demand has been made or not, unless he has fraudulently concealed the fact of its receipt by him,2 or in any event after the lapse of a reasonable time 1 When there is an understanding between the parties that the agent is to account or pay on demand, the agreement takes the place of any implied contract, and controls. Thus, where money is deposited with an agent to be loaned or invested with interest and be accounted for on demand; whether the loans be made or not, or whether the money is used by the agent or not, or although the money is used by him which would amount to a loan to him, the statute does not be gin to run in his favor until after a demand for an accounting is made upon him. Baker v. Joseph, 16 Cal. 173. 2 Campbell v. Boggs, 48 Penn. St. 524; Emmons v. Hayward, 6 Cush. (Mass.) 501; East India Co. v. Paul, 1 Eng. L. & Eq. 44; Estes v. Stokes, 2 Rich. (S. C.) 320; Hopkins v. Hopkins, 4 Strobh. (S. C.) Eq. 207; Cogwin v. Ball, 2 Ill. App. 70. In Dodd v. Vannay, 61 Ind. 89, it was held that a creditor who takes a note from his debtor to be collected and applied to the payment of his debt, and the balance to be paid to the debtor, is the debtor's agent, and not liable for the balance until demand has been made therefor. The statute begins to run against the claim of a principal to recover from an agent who has collected a |