
    Hawkins vs. Walker, Administrator of Walker.
    
    
      X received money as agent of B, and for B’s own ase, and died. An action of assumpsit was instituted four years after the receipt of the money, against A’s administrator, who pleaded the act of limitations of three years; no demand of the money had been made of A, or his administrator. Held, that the action was barred.
    This was an action of assumpsit, brought against the defendant for money collected by William Walker, deceased, the defendant’s intestate; the defendant pleaded the statute of limitations in bar of the demand, to which the plaintiff replied generally. Upon the trial of the cause, the plaintiff proved that in 1824, he had placed in the hands of Wm. Walker, deceased, anote for collection, on Lot Hazzard, for 70 or $85; that in 1825, the money was collected by a constable and paid to said Walker; that in the spring of 1S29, the plaintiff demanded the money of defendant; that defendant replied, he must settle it according to law, and appointed a day to see the plaintiff’s agent, and then said he would not pay the money. The suit was commenced on the 17th October, 1829. The court charged the jury, that “if there was no promise made by the deceased, Walker, or the administrator, within three years before bringing the suit, and the defendant’s intestate had received the money more than three years before the institution of the suit, tire statute of limitations would be a bar to the plaintiff’s demand. The institution of an' action in a court of law, is an acknowledgment that the deceased did not stand in .the relation to the plaintiff of an express trustee. The trust or confidence existing between them, is only implied by law, and all such cases the statute of limitations operates upon.” The plaintiff’s counsel contended that the statute could not begin to run before the plaintiff made a demand of the money. The court said, “I am of a different opinion. That would be to make the statute de-
    
      pend upon the will of the plaintiff, and not the lapse of time. The statute must commence its operation from the receipt of the money hy defendant’s intestate.” Upon the evidence and the charge of the court, the jury found a verdict for the defendant. The plaintiff moved for a new trial, which motion was overruled, to which the plaintiff excepted and appealed to this court.
    
      J. üitcfcs, for plaintiff in error.
    The only question in . this case is upon the statute of limitations. The action is for money had and received. The facts are, that William Walker in his life time, who lived in Tennessee, collected money for the plaintiff, of North Carolina, as his agent and attorney in fact. The money was collec ted in 1825. The plaintiff did not send and demand'it until 1829. William Walker in the mean time had died, and the defendant administered upon the estate and refused to pay the money, and this suit was brought. The court charged the jury that the statute began to run in favor of William Walker, from the time he received the money. Act 1715, provides that the suit shall he brought within 3 years next after the cause of action accrued. No suit could be brought in the case until the money was demanded, and the statute began to run from that time. Topham vs. Bradick, 1 Taunton, 572, is to this point. -There, goods were deposited with defendant to sell, and 15 years had expired, but adjudged the statute only began to run from the time of the demand. Holmes vs. Kirrison, 2 Saun. 323, which was a debt on a bill payable after sight. The statute only began to run from the time it was presented. 20 John. 5S5-6: See cases collected, 4 Bac. A. 474: 5 Dane, 392, and in Angel, on Stat. Lim. 183-4,
    
      J. §>. Yerger, for defendant in error.
    1. There is nothing erroneous in the charge of the court; the doctrine that the statute of limitations will not operate to bar a trust, applies only in cases of express trusts, when there is no remedy at law,, and not to trusts by implication or construction of law. 2 Hawks’ R. 269: 2 Murph. R. 115: Cooke’s R. 1S2: 7 John. Ch. R. 90, 127: 6 John. Ch. R. 266: 20 John. Rep. 576, 610: Martin and Yer-ger’s Rep. 361: Angel on Lim. 349.
    2. The statute commences running whenever the cause of action is complete; it is complete as soon as the money is received. The money was payable on demand after its receipt; that demand was not necessary to be made before suit commenced. Money collected by an agent is payable'immediately; the same as a note on demand. It is the plaintiff’s own neglect that he did not bring his suit within 3 years. Chitty on Bills, 479: 1 Rand. R. 284: Martin and Yerger, 361.
   Catron, Ch. J.

delivered the opinion of the court.

In May, 1825, Walker, the intestate, collected as agent for Dr. Hawkins, of N. C. $S5. No communication took place between him and Walker; they had been acquainted in N. C. Capt. William Walker died, and on the 17th October, 1829, this suit in assumpsit was brought against Samuel Walker, his administrator, for the money.

The statute of limitations of three years was pleaded, and issue taken on the plea.

The plaintiff’s counsel insisted that the statute would not run in favor of an agent who had collected money for his principal; at any rate, not until the agent was called upon to pay the money and refused or neglected to do so.

But the court charged the jury, “that if there was no promise made by the deceased, Walker, or the administrator, within three years before the bringing of the suit, and the money had been received by defendant, intestate, more than three years before the institution of the suit, the statute of limitations would be a bar to the plaintiff’s demand. That this cause was not distinguishable from the cases recently decided by the supreme court, on the statute of limitations, &c. Thejuiy found for the defendant.

We think the charge of the court was uncommonly accurate, and that this case cannot be distinguished in principle, from that of Cocke and Jack vs. M’Ginnis, Martin and Yerger’s Rep. 361.

Since the delivery of the opinion above, the court has again, as desired, looked into the cause, on this ground, “that no suit could be brought in this cause, until the money was demanded, and that the statute began to run from that time.”

This would put it into the plaintiff’s power in every case, where money is received to another’s use, to control the operations of the statute at his pleasure. If Walker was not subject to be sued until special request, it was necessary to state this request specially 'in the declaration, and prove it. Chitty’s Plead. 322. To whom the request was made, and the time and place of making it, must be set forth, so that the court may judge of its sufficiency. Chitty’s Plead. 324-5. In cases where a special request is not necessary, the suit is all the law requires, and the general request is a mere formality. The averment of a special request, setting out persons, time and place, is unknown in pleading, in cases where the suit is for money had and received to the plaintiff’s use. The declaration in this cause has no such averment. It alleges Wm. Walker had in his lifetime received the money to the plaintiff’s use; in consideration whereof, he undertook and faithfully promised to pay. The proof is, Walker did collect and receive the money for plaintiff; that this was sufficient to authorize a recovery against the defendant, the statute of limitations aside, we think free from doubt, and for this reason: if A as the agent of B, collects his money, the agent knows he has done so. He must be the actor. It is his . ' . duty to deliver it to the true owner, just as much as it is the duty of the debtor to pay when the debt falls due.

It is not consistent with good morals, nor is it the law of the land, that the creditor must find the debtor, and ask for his money.

The cause of Smith vs. Whiteside, decided at the present term, presented the above question. Whiteside as an attorney at law, had collected the money of Smith and Hall, and retained a part of it more than six years; then his administrator was sued. It was not doubted there was cause of action, and the statute commenced its operation so soon as the money was received, because, then it was Whiteside’s duty to pay it over. That case and this, cannot be distinguished, and Jack and'Cocke vs. M’Ginnis, is stronger than either.

Judgment affirmed.  