
    [Pittsburg,
    September 19, 1826.]
    JOHNSTON against HUMPHREYS, Administrator of PORTER.
    IN •ERROR.
    If money be received as a deposit for a special purpose, and the party who receives it, instead of applying it to that purpose, uses it, he cannot set up the act of limb tations as a bar to a recovery by the party entitled to it.
    On a writ of error to the Court of Common Pleas of West(more-land county, it appeared that this was an action on the case, brought by the defendant in error, Thomas Humphreys, administrator of Charles Porter, deceased, against Alexander Johnston, for money had and received by the latter for the use of the former, under the following circumstances:—
    
      Charles Porter purchased from John Craig a tract of land, and paid him the first instalment. Porter died in Philadelphia, on his way to Ireland, and, there being no person in this country to complete the purchase, the amount of the first instalment was paid over to Thomas Humphreys, the brother of Elizabeth Porter, the wife of Charles Porter. The money was deposited in the hands of James Irwin, who, having used it, gave his bond for three hundred and fifty-one dollars and eighty cents, in the name of Elizabeth Porter. Thomas Humphreys, having collected the money from James Irwin, the attorney, by his direction, and in consequence of letters from Ireland, paid it over to Alexander Johnston, to be transmitted by him to Ireland. Johnston wrote the bond, from Irwin to Elizabeth Porter, and knew all about the transaction. The money not being transmitted, according to the understanding of the parties, Thomas Humphreys took out letters of administration, on the 8th of September, 1819, on the estate of Charles Porter, and brought this suit to August Term, 1821. After the letters of administration .were granted, Hum-phreys claimed the money from Johnston, who said he was making arrangements to send it to Ireland.
    
    The defendant relied upon the act of limitations, more than six years having elapsed from the receipt of the money, until the commencement of the suit. The, court below was of opinion that the act of limitations did not prevent the plaintiff from recovering, in the case before it, and the plaintiff excepted to its opinion.
    
      Alexander, for the plaintiff in error,
    said, that the money belonged to Elizabeth Porter, because the bond for it was given to her, and it was recovered at law, and paid to the defendant below as her agent. But, admitting it was received for the personalre-presentative of Charles Porter, the defendant below having become a trustee against his will, the trust was not of such a character as would prevent the operation of the act of limitations. 1 Wheat. 177. Witherup v. Hill, 9 Serg. & Rawle, 12.
    
      Foster, for the defendant in error,
    answered, that the widow of Charles Porter had no right to the. money, except in trust for the personal representatives of her late husband, and when the amount; of the bond was recovered it belonged to his estate, which entitled the plaintiff to recover it. The evidence showed that the defendant below knew all the circumstances of the case, and, consequently, that it belonged to the estate of Charles Porter, tie was therefore a voluntary trustee, and cannot set up the act of limitations against the trust. Besides, there was a demand of the money after letters of administration were taken out, and an acknowledgment of the debt, by a declaration, on the part of the defendant, that he was making arrangements to remit the money to Ireland.
    
   The opinion of the court was delivered by

Rogers, J.

It has been ruled by the Chancellor of New York, (3 Johns. Ch. R. 190,) that no lapse of time is a bar to a direct trust, between the trustee and cestui que trust. Upon this principle, it has been decided that an administrator, being a trustee, cannot set up the act of limitations in bar of the next of kin, or person entitled to the distribution of the assets. The distinction is between a direct or express trust, and those eases where a person comes into possession in his own right, and is afterwards, by matter of evidence, or construction, changed into a trustee. T^e same Chancellor has also ruled, (in 7 Johns. Ch. R. 90,) that, as long as there is a continuing ahd subsisting trust, acknowledged or acted on by the parties, the statute of limitations does not apply. The application of these principles to the facts of the cause, will decide the question raised, on the defendant’s plea of the act of limitation. The money was not paid over to Johnston, nor received by him with the view of being used by him; but it was a deposit made for a particular and special purpose, on the express trust and understanding of all the parties, that he would transmit the money to Ireland, for the benefit, as I understand it, of the legal representatives of Charles Porter, who alone were entitled to receive it. There was a special confidence reposed in him, and, upon the receipt of the money, he becomes a trustee for the benefit of those who were legally entitled to the money. If this case be embraced within the act, when, it may be asked, does the statute begin to run? Surely not from the receipt of the money, but from the time there was some person in this country who had a right to demand payment, which was not until the 8th of September, 1819, when letters of administration were granted to Thomas Humphreys, and less than six years before the commencer ment of the suit. The case in 7 Johns. Ch. R. 90, establishes the principle, that it must cease to be a continuing and subsisting trust, otherwise the remedy is not barred by lapse of time. In firmer that the statute of limitations may begin to run in the case of a trust, there must be an adverse holding of the money, of which I should presume those who aré interested should have notice. In the case under consideration there was no adverse holding. It was in the beginning an express trust. It remained a continued and subsisting one. It is a part of this case, that when a demand was made by the administrator, Johnston acknowledged the debt, and said he was making arrangements to send the money to Ireland. This conversation took place after the 8th of September, 1819, when the letters of administration were granted. The suit was brought to August Term, 1821. I do not, however, put the cause upon this acknowledgment, as taking it ou$ of the statute of limitations; but I consider the acknowledgment as plainly implying that Johnson himself viewed it as a continuing and subsisting trust, which brings it within the principle of the case of Thum v. Bloodgood, 7 Johns. Ch. R. 90.

Judgment affirmed.  