
    *Michael Lever v. Wm. Lever, Executor of George Lever, deceased.
    The possession of an agent or bailee is not adverse until after demand ; and when an agent or attorney receives money for his principal, there is no cause of action till demand, and the statute of limitations does not begin to run till then. [*67j
    "Where a note is signed only by the maker affixing his mark, and the subscribing witness is the executor of the (deceased) payee, the note cannot be given in evidence on proof the handwriting of the witness; it must be shown that the note existed before the witness’ interest accrued. [*68]
    The bill states, that on the plaintiff’s attaining full age, George Lever, his father and the defendant’s testator, proposed to undertake the management and control of his estate, and to transact all his business, on the ground of his mental imbecility and want of education, which was agreed to by the plaintiff; that, accordingly, his father, for about sixteen years, and until his death, did transact his business and manage his estate, as an agent or trustee, and receive several large sums of money and the proceeds of the plaintiff’s crops, for which he never accounted. That during this period he received from George Lever several small sums of money, for which he gave his notes, as it was understood, to serve as a memo-randa of the amounts received by him out of his own funds in his father’s hands; but that the defendant has, since the death of George Lever, commenced suit on these notes against the plaintiff. That, on one occasion, the said George Lever induced the plaintiff to confess a judgment to him, for $25*1, for the purpose, as he told him, of protecting him against a scheme which certain designing persons had, to defraud him of his land, and that by confessing this judgment the land would be secure. And that this judgment, thus fraudulently obtained, the defendant is about to enforce. The bill prays an account; and a perpetual injunction against the judgment, and further proceedings on the notes.
    The defendant, in his answer, denies that George Lever was the agent or trustee of the plaintiff; but admits that he received several sums of money, which, however, he disbursed for the plaintiff’s use. As regards the judgment, he avers his belief that it was confessed to secure certain debts then owing to George Lever, and to imdemnify him against sundry liabilities which he had incurred for the plaintiff. That the several notes referred to by the plaintiff, were not given as he alleges, as memoranda, but for value received, and that when they were respectively given, *the said George Lever fully accounted and settled with the plaintiff, for all moneys previously received, and at such times there were balances due to him, for which the notes were given, and that the defendant was himself present, on these occasions, and drew the notes and witnessed them. The-answer sets up these various accountings and settlements, by way of plea in bar, to any account up to the date of the notes, and pleads the statute of limitations.
    The evidence showed that George Lever acted as the plaintiff’s agent or trustee, in the transaction of his business, and that he received the avails of the crops, and several large sums of money. It was proved, also, that George Lever when about making his will said “he intended to satisfy the judgment he held on Michael, and to give Mm up his land titles; lie belcl the judgment to keep people from defrauding him of his land, but he would give up the judgment, and if he fooled away the land, he must do it.” In support of his plea of a former account and settlement between the parties, the defendant produced the notes referred to in his answer, to which, as it seemed, the'plaintiff had affixed his mark, and offered to prove their execution by proof of his own (defendant’s) signature, as the subscribing witness. The Chancellor held, that this was not sufficient to authorize the notes to be received, and rejected them.
    The case came to trial at Newberry, July Term, 1832, and the following decree was afterwards delivered.
    September, 1832. Johnston, Chancellor. The allegation, that the notes taken by George Lever from.the plaintiff, were intended merely as memoranda, may be true, but there was no proof to support it, and that part of the bill must fail. I think the proof is sufficient to establish the allegation, that the two hundred and fifty-seven dollars’ judgment was confessed to cover the plaintiff’s land from crafty speculations. The defendant’s answer on this point, is not as of his own knowledge, and requires less proof to rebut it, than if it had been. I shall therefore sustain that part of the bill; but the injunction to restrain the enforcement of the execution, will continue only until further order — it being the intention of the Court to *perpetuate it, in case the accounts on the other part of the case hereinafter to be ordered, shall result in favor of the plaintiff; but if in favor of the defendant, then to make the judgment stand as collateral security, for the balance which shall be struck in his favor.
    The great difficulties of the case, however, concern the other parts of the bill, which charge that George Lever undertook to a<Jt, and did act as trustee of the plaintiff. I think the proof, that he did so undertake and act, is clear and conclusive. His own admissions were too numerous to leave a doubt of the fact. I have not only no doubt that he acted as the plaintiff’s trustee, but I am constrained to say I do not believe he fully performed his trust. On the contrary, I am fully persuaded that at his death he was largely in arrear to the plaintiff. The sums received by him from time to time, were too large to have been absorbed in the plaintiff’s annual expenses. It is pretty clear that these could not have so far exceeded the crops, as to have given room for the sums received from Snelgrove and others, and from Caldwell. If he, acting as agent, permitted the expenses to run to such an amount, it wears so much the appearance of neglect and unfaithfulness, that he ought to have secured ample vouchers, either from Michael’s creditors, or from Michael himself, to show that he paid out these exorbitant sums — exorbitant considering the means of Michael. But so far from it, the circumstantial evidence is very strong against him, and particularly to show, that the money received byhim, from Mr. Caldwell, was by him vested in the land now owned by William Lever. These remarks will show, that I am far from believing the plea of settlement to be founded on fact.
    Having this view of the case, believing as I do, conscientiously, that the moral justice of the case is clearly with the plaintiff, I cannot express the regret which I feel in being compelled to sustain the plea of the act of limitations. But I am to declare, and not to make the law. That is the province of the people. I am bound to decide the ease made before me. The case made, in my conception, is one to which the act is a good defence. If it *had been alleged, that George Lever vested the sums received by him from Caldwell, in the purchase of Paysinger’s land,' it would have been worthy of inquiry, whether a trust did not result to the plaintiff. But no such fact is alleged. The case set out in the bill, is one of money received by George Lever, to be expended for the benefit of the plaintiff. It is not denied but that the case is one of trust. Every bailment, every agency, is a trust. But it is a vulgar error to suppose that every trust is exempted from the operation of the act of limitations. (Kane v. Bloodgood, I John’s. Ch. Rep. 90.) On the contrary, no trust is exempted from its operation, but one which is express, technical and continuing ; and one, moreover, the remedy for the breach of which is exclusively in this Court. The latter part of this position is what governs in this case. When there is a concurrent remedy in law and equity upon the ease made, the limitation is the same in both Courts. Otherwise, a plaintiff by electing his tribunal, might cut his opponent off from a defence, to which the law of the land entitles him. (20 John. Rep. 516; T John. Ch. Rep. Ill, 14, 21; Salk. 243, 610; 3 Bro. 639, note; 2 Sch. & Lef. 601; Willes’ Rep 404, 405.) Now there can be little doubt but that the plaintiff could have maintained an action at law against his father, for each sum received by him as he received it, and to the same extent that he would be bound at law by his laches, is he bound in this Court. He is bound, as to all sums received more than four years and nine months before the filing of this bill. I have paid no attention to the incapacity of Michael, because it was not needed to render it more probable that his father undertook to act for him. The other proof put that matter beyond doubt in my mind. And this was the only view with which I received the testimony on that point. I could not have received it, if, with a view to free him from the rules of law which would have applied to him, if he had possessed the strongest mind. This is not a question of fraud, but of trust. And as to the act of limitations, strength or weakness of mind can make no difference, unless there be a total incapacity. If that was intended to be shown, other consequences would have ensued. The same proof would have shown that the ^plaintiff could not institute this suit, and the bill should be dismissed, as having been filed by one incapable of binding himself.
    It is decreed, that the Commissioner take an account on reference, when he shall charge the estate of jorge Lever, with all sums which shall be proved to have been reeer by him, as agent or trustee of the plaintiff, within four years and w months before the filing of this bill— allowing all proper credits and... obursements; that an injunction do issue to restrain, until the further order of the Court, the collection of the judgment described in the bill as having been entered in the Common Pleas for Newberry District, the 10th January, 1821, and that the costs of this suit be paid out of the estate of George Lever.
    From this decree both parties appealed. The plaintiff appealed from so much of the decree as sustains the statute of limitations: and the defendant appealed on the grounds that the Chancellor enjoined the judgment without sufficient evidence that it was fraudulently obtained, and if it had been so obtained, the plaintiff was partioeps oriminis, and not entitled to relief; and because the Chancellor rejected the notes, on the proof which was offered of their execution.
    
      Summer, for the defendant, insisted that the judgment was to be' considered as founded on a valuable consideration, and as prima facie valid, until the contrary was proved ; and that the evidence given to impeach it was not sufficient to authorize the decree against it. As regards the moneys for which an account is claimed, this was but the common case of money had and received, for which the plaintiff could maintain his action at law: trusts against which the statute of limitations does not run, must be purely technical — such as are cognizable only in equity ; but the plaintiff’s demand is legal, and the statute applies : 7 John. Ch. Rep. 124; 20 John. Rep. 516 ; 2 Atk. ‘/10. As to the evidence on the execution of the notes, he cited 2 N. & M’C. 364 ; Strange, 34; IP. W. 289 ; 1 Starlde, 342.
    
      Fair, for the plaintiff, contended that it was proven ^conclusively, that the defendant’s testator acted as the plaintiff’s trustee, and his executor cannot disclaim that character or avoid its consequences; that the statute of limitations did not apply to this case, which was one of a trust; and in any event, it did not commence running until after a demand of the money, and the plaintiff’s rights had been usurped by a refusal to pay : 2 Bail. 51; 1 Taun. 572; Willison v. Watkins, 1 Law Journal, 132; 5 John. Ch. Rep. 523. As to the effect of the notes, and the proof of their execution, he cited 1 P. W. 289 ; Salk. 386; 1 Strange, 101 ; 5 T. R. 371; 1 Starkie, 338.
    
      Pope, for the defendant, in reply, urged that the answer of the defendant, as to former accounts and settlements, being positive and uncontra-dicted, should be regarded as sufficient to sustain this part of his defence. As to the evidence on the notes, he referred to 2 Bast, 182 ; and on the statute of limitations, to Starke v. Starke, 4 Law Journal, 503.
   Harper, J.

I shall first consider the complainant’s grounds of appeal. We concur with the Chancellor, that “ when there is a concurrent remedy in law and equity upon the case made, the limitation is the same in both Courts,” and the present case is to be considered as at law. But at law, the statute does not begin to run till there is some usurpation of the claimant’s right, and a cause of action has arisen. The possession of an agent or bailee (and a bailment is a trust) is the possession of the bailor or principal, and is not adverse till demand made. In the case of a simple deposit of money, to be left for the depositor, or to be paid according to his direction, there is no cause of action till demand be made or an account stated, and the statute does not begin to run till then. So in the case of an attorney, who receives the money of his client, or a sheriff who receives the money of a plaintiff in execution. So of a steward or factor. Topham v. Braddick, 1 Taunt. 572. And see Chancellor Kent’s decision in Coster v. Murray, 5 Johnson’s Ch. Rep. 531. On this ground, then, we think the Chancellor’s decree must be reversed ; and this disposes of all the complainant’s grounds of appeal.

*With respect to the defendant’s appeal from so much of the Chancellor’s decree as regards the judgment confessed by the complainant to George Lever, we are inclined, though the testimony was not very full, to concur with the Chancellor, who could best judge of the effect of the evidence. If the defendant desires it, however, he may have an issue or issues to a jury, to inquire whether the judgment was founded on any, and what consideration, or was voluntary — whether it was fraudulent, or intended as a security, and if intended as a security, how much is due upon it. At the same time an issue may be taken to try the plea of final account and settlement.

With respect to the appeal from the decision of the Chancellor, rejecting the evidence of the defendant’s handwriting, to prove the execution of the notes, we concur with the Chancellor. The cases referred to in the argument, do establish, that where a subscribing witness to a note or obligation becomes interested or is appointed executor, it may be given in evidence, upon proof of his handwriting. But in those cases, I take it for granted, the instrument was signed by the maker’s own hand, the genuineness of which signature might be the subject of investigation, or that the instrument was shown to have been in existence before the witness’s interest accrued. The door which would be opened to fraud, is conclusive against the reception of such evidence in a case like the present. Every executor might manufacture as many notes as he pleased, of persons unable to write, and recover them, under proof of his own handwriting as subscribing witness. It might be different if the defendant had shown that the notes attested by him were in the. possession of George Lever, in his lifetime, • and found by the defendant among his testator’s papers.

The decree of the Chancellor is modified according to the views expressed.

Johnson and O’Neall, Js., concurred.  