on the right to recover money paid by mistake, though the
mistake is not discovered until later,90 and in favor of a pur-
chaser from an express trustee with notice of the trust,91 unless
the cestui que trust is in possession of the res.92

§ 2035. Whether statute runs on liability of corporate officer.
It has been held by a number of decisions that the statute
runs in favor of a director or officer of a corporation on his
obligation to the corporation or to its creditors for the proper
fulfillment of his duties.92 On principle, however, it would
seem that such a person is a fiduciary not by imposition of
law but by his own consent, and that the rules governing an
express trustee should be applied; and so it has been held.93

edge of the beneficiary, renounced,
disclaimed or repudiated the trust.
But Edward Lammer was not the
actual trustee of this fund, and he
never acknowledged trust as to the
money loaned him. He could, at
most, have been declared a trustee
ex maleficio or by implication or con-
struction of law, and in such a case
the statute begins to run from the
time the wrong was committed by
which the party became chargeable
as trustee by implication."

89 Baker v. Courage, [1910] 1 K. B.
56; Leather Mfrs. Nat. Bank v. Mer-
chants Bank, 128 U. S. 26, 9 S. Ct. 3,
32 L. Ed. 342; County v. Montgomery,
195 Ala. 197, 70 So. 642; Schultz v.
Cass County, 95 Ind. 323; Sturgis v.
Preston, 134 Mass. 372; Morris v.
Budlong, 78 N. Y. 543; Montgomery's
Appeal, 92 Pa. 202, 37 Am. Rep. 670.

90 See cases in the preceding note.
But by statute in some States the
time is computed from discovery of
the mistake, or from the time when
with reasonable diligence it might
have been discovered. Hayes v. Los
Angeles County, 99 Cal. 74, 33 Pac.
766; Shain v. Sresovich, 104 Cal. 402,
38 Pac. 51; Storm Lake Bank v. Buena
Vista County, 66 Ia. 128, 23 N. W.
297; Nicholson v. Nicholson, 94 Kan.

153, 146 Pac. 340; German Security
Bank v. Columbia &c. Co., 27 Ky.
L. Rep. 581, 85 S. W. 761; Lanning
v. Transylvania County, 106 N. C.
505, 11 S. E. 622.

91 Smith v. Dallas Compress Co., 195
Ala. 534, 70 So. 662.

92 Peixouto v. Peixouto, (Cal. App.)
181 Pac. 830, and cases cited.

92a Rankin v. Cooper, 149 Fed. 1010;
Knowles v. Rome Tribune Co., 127
Ga. 90, 56 S. E. 109; Stone v. Rottman,
183 Mo. 552, 82 S. W. 76; Wallace v.
Lincoln Savings Bank, 89 Tenn. 630,
15 S. W. 448, 24 Am. St. Rep. 625.
See also Re Lands Allotment Co.,
[1894] 1 Ch. 616. In Lippett v. Ash-
ley, 89 Conn. 451, 94 Atl. 995, the
court lay stress on the fact that the
breach of duty was merely passive
negligence, and held that at least in
such a case the statute ran in favor
of the officer. In National Bank of
Commerce v. Wade, 84 Fed. 10, it
was held that the statute did not run
in favor of directors until after they
had surrendered control of the cor-
poration. In Frost v. Arnaud, 144
Ga. 26, 85 S. E. 1028, it was held that
the statute ran in favor of a promoter
in a suit for fraud by subscribers to
the stock of the corporation.

93 In Greenfield Savings Bank v.

§ 2036. Agents.

It is generally essential as a prerequisite to an action by a
principal against an agent for money collected by the latter,
that a demand shall have been made upon the agent.94 But if
the agent under agreement with the principal is bound to pay
at once or at a particular time,95 or if the regular course of
business indicates that payment should be made without de-
mand, or if a reasonable time for payment has elapsed,97 no
demand is necessary. And this is true also if the agent disputes
the agency or repudiates liability,98 or tortiously appropriates
Abercrombie, 211 Mass. 252, 97 N. E. Such cases need not be considered.
897, 39 L. R. A. (N. S.) 173, Ann. So far as they differ from our con-
Cas. 1913 B. 420, the court said of clusions we have not been willing to
such officers: "These defendants follow them."
stood as to the bank and its depositors
in the position of trustees of a direct
trust. In such a case the Statute of
Limitations does not begin to run
against the cestui que trust until they
have learned of the trustee's wrong-
doing or of his practical repudiation
of the trust and of the duties thereby
imposed upon him. Davis v. Coburn,
128 Mass. 377; Jones v. McDermott,
114 Mass. 400; Boxford Religious
Society v. Harriman, 125 Mass. 321;
Potter v. Kimball, 186 Mass. 120, 71
N. E. 308. Instances of the appli-
cation of the rule to such cases as
the one now before us are sufficiently
numerous. Williams v. McKay, 40
N. J. Eq. 189, 53 Am. Rep. 775, re-
versing same case sub nom. Williams
v. Halliard, 38 N. J. Eq. 373; Williams
v. Riley, 7 Stew. 398; Ellis v. Ward,
137 Ill. 509, 25 N. E. 530; National
Bank of Commerce v. Wade, 84 Fed.
10; Brinckerhoff v. Roosevelt, 143 Fed.
478, 74 C. C. A. 498; In re Sharpe,
[1892] 1 Ch. 154. In most of the
cases relied on by the defendants the
case was either governed directly by
statute, as In re Lands Allotment Co.,
[1894] 1 Ch. 616, 631, and Mason v.
Henry, 152 N. Y. 529, 46 N. E. 837,
or it was held that no direct trust
relation existed between the parties.

94 Taylor v. Spears, 6 Ark. 381, 44
Am. Dec. 519; Bedell v. Janney, 9
Ill. 193; Eberhart v. Reister, 96 Ind.
478; Claypool v. Gish, 108 Ind. 424,
9 N. E. 382; Haas v. Damon, 9 Iowa,
589; Green v. Williams, 21 Kan. 64;
Roberts v. Armstrong, 1 Bush, 263,
89 Am. Dec. 624; Wall v. Colbert, 36
La. Ann. 883; Kimball v. Kimball, 16
Mich. 211; Ewers v. White, 114 Mich.
266, 72 N. W. 184; Judith Inland
Trans. Co. v. Williams, 36 Mont. 25,
91 Pac. 1061; King v. Mackellar, 109
N. Y. 215, 16 N. E. 201; Williams v.
Storrs, 6 Johns. (N. Y.) Ch. 353, 10
Am. Dec. 340; Waring v. Richardson,
11 Ired. L. 77; Egerton v. Logan, 81
N. C. 172; Cole v. Baker, 16 S. Dak.
1, 91 N. W. 324.

95 Campbell v. Roe, 32 Neb. 345,
49 N. W. 452; Hæbler v. Luttgen, 2
N. Y. App. Div. 390, 37 N. Y. S. 794,
affd. 158 N. Y. 693, 53 N. E. 1125;
Brown v. Arrott, 6 W. & S. 402; Camp-
bell v. Boggs, 48 Pa. 524; Hasher v.
Hasher, 96 Va. 584, 32 S. E. 41. See
also Jewell v. Jewell, 139 Mich. 578,
102 N. W. 1059.

96 Brown v. Arrott, 6 W. & S. 402.
97 Langley v. Sturtevant, 7 Pick. 214;
Eaton v. Welton, 32 N. H. 352; Wood
v. Young, 141 N. Y. 211, 36 N. E. 193.

98 Hammett v. Brown, 60 Ala. 498;

the principal's funds.99 As the statute will not begin to run
until the principal's right of action has accrued it will not or-
dinarily run until after demand by the principal,1 or until a
time has arrived when the agent has agreed or has been in-
structed to make payment. Where the agent is bound to
turn over the money immediately or at a fixed time, the prin-
cipal's lack of notice of the collection is immaterial unless the
agent is guilty of fraudulent concealment.3

The relation of bailor and bailee is within these principles.
Until the bailee acts in violation of the terms of the bailment,
or the time arrives when because of a demand or by virtue of
the contract between the parties the bailment should end, the
statute will not run. Whether the same principle applies to
an attorney-at-law who has made a collection for a client who
has not been notified that the collection has been made is dis-
puted, but demand has in only a few cases been held a pre-

requisite to the running of the statute. Jegligent conduct of
professional business intrusted to an atrney is a breach of
contractual duty on which the statute bens to run, when the
failure of duty occurs, though it may case no damage until
later."

§ 2038. Partners.

8

Wilcox v. Plummer, 4 Pet. 172, 7 L.
Ed. 821; Fortune v. English, 226 III.
262, 80 N. E. 781, 12 L. R. A. (N. S.)
1005, 117 Am. St. 253; Maloney v.
Graham, 171 Ill. App. 409; Kruegel v.
Porter (Tex. Civ. App.), 136 S. W. 801
(Tex.), 155 S. W. 174; Cornell v. Edsen,
78 Wash. 662, 139 Pac. 602, 51 L. R.
A. (N. S.) 279.

During the existence of a partnership he statute does not
run against any right arising out of the patnership of a partner
against his co-partners, and if partnership property is held in
the name of an individual partner, or is held in the name of a
third person for the benefit of the firm," the statute will not
run in favor of the person thus holding title as long as the part-
nership exists, unless the fiduciary obligation is repudiated.
Where, however, a partnership is dissolved as by the death of
partner, the statute begins to run at once against the repre
sentatives of the deceased partner, 11 unless the surviving part-
mediately or within a reasonable time
is admitted in Kimbro v. Waller, 21
Ala. 376; Coffin v. Coffin, 7 Me. 298;
Cook v. Rives, 21 Miss. 328, 53 Am.
Dec. 88; Douglas v. Corry, 46 Ohio St.
349, 21 N. E. 440, 15 Am. St. Rep. 604;
Campbell v. Boggs, 48 Pa. 524; Good-
year &c. Shoe Co. v. Carpenter (Vt.),
69 Atl. 160, 17 L. R. A. (N. S.) 667;
Ott v. Hood, 152 Wis. 97, 139 N. W.
762, 44 L. R. A. (N. S.) 524, Ann. Cas.
1914 C. 636. But other decisions
require notice from the attorney or
knowledge by the client that collection
has been made in order to start the
statute. Leigh v. Williams, 64 Ark.
165, 41 S. W. 323, 62 Am. St. Rep. 183;
Vigus v. O'Bannon, 118 Ill. 334, 8 N.
E. 778; Wilder v. Secor, 72 Iowa, 161,
33 N. W. 448, 2 Am. St. Rep. 236;
Guernsey v. Davis, 67 Kans. 378, 73
Pac. 101; Donahue v. Bragg, 49 Mo.
App. 273.

Birckhead v. De Forest, 120 Fed.
645, 57 C. C. A. 107; Roberts v. Arm-
strong, 1 Bush, 263, 89 Am. Dec. 624;
Sneed v. Hanly, Hempstead, 659.

7 Re Croyden, 55 Solic. Jour. 632;

8 Barton v. North Staffordshire R.
Co., 38 Ch. D. 458, 463. See also
Chan Kit San v. Ho Fung Hang,
[1902] A. C. 257.

'Roach v. Roach, 143 Ga. 486, 85
S. E. 703.

10 Arnold v. Loomis, 170 Cal. 95, 148
Pac. 518.

11 Knox v. Gye, L. R. 5 H. L. 656;
Taylor v. Taylor, 28 L. T. R. (N. S.)
189; Roach. Roach, 143 Ga. 486, 85
S. E. 703; Pierce v. McClellan, 93 Ill.
245; McKaing v. Hebb, 42 Md. 227;
McKelvy's Appeal, 72 Pa. St. 409;
Allen v. Woonsocket Co., 11 R. I. 288;
Coalter v. Coalter, 1 Rob. (Va.) 79.
See also Harris v. Hillegass, 54 Cal.
463; Askew v. Springer, 111 Ill. 662;
Chandler v. Chandler, 4 Pick. 77.

ners tacitly or expresy accept the position of trustees for such representatives. 11a 1 exception has been made, moreover, where outstanding clns are to be collected by the surviving members of the firm,ad it has been held that the statute does not begin to run un their collection, or until the surviving partners have been dty of laches in failing to make it.12

§ 2039. Husband arwife.

Where no contracal liability can exist between husband and wife, as was these at common law, and is still the case in many jurisdictionthere could be no question of limitation of contractual rightsf action. And even where they are allowed to contract, ty are ordinarily not allowed to sue one another at law on omary pecuniary obligations, or even if so allowed, it is deemeagainst the policy of the law to require such an action as a adition of preserving substantial rights. For one of these reans or another, therefore, it is generally eld that the statutwill not run against a claim of a wife,13 husband 14 againsthe other until discoverture." 15

12 F

entite v. Elliott, Ga. 154; Richa Grinnell, 63 I, 44, 18 N. W. 6s, 50 Am. Rep. 72 Holloway v. Turne 61 Md. 217; Clung v. Capehart, 2 Minn. 17; Todd v. Rafferty, N. J. Eq. 254 Patterson v. Lilly, 9N. C. 82, 88; Jordan v. Miller, 75 \ 442; Sandy ↑ Randall, 20 W. Va. 24

13 Barnett Harshbarge, 105 Ind. 410, 5 N. E. 18; Dice 1. Irvin, 110 Ind. 561, 568, 1 N. E. 488 Fourthman v. Fourthman, k Ind. Apr. 199, 43 N. E. 965; Lower v.Lower, 4; Iowa, 525; Biggerstaff's Aon. v. 3iggerstaff's Adm., 19 Ky. L. Rep. 31, 40 S. W. 671; Sewell v. McVay, 30 h. Ann. 673; Morrison v. Brown, 84 M. 82, 24 Atl. 672; Yeomans v. Petty, N. J. Eq.

14 Gracie's Estate, 158 a. 521, 27 Atl. 1083.

15 Divorce will start the running of

495, 4 Atl. 631; Alpaugh v. Wilson, 52 N. J. Eq. 424, 28 Atl. 722; Metlar v. Williams, 86 N. J. Eq. 330, 97 Atl. 961; Simmerson v. Tennery, 37 Ohio St. 390; Kennedy v. Knight, 174 Pa. 408, 34 Atl. 585; Gillan v. West, 232 Pa. 74, 81 Atl. 128; Stockwell v. Stockwell's Est. (Vt.), 105 Atl. 30; Gudden v. Gudden's Estate, 113 Wis. 297, 89 N. W. 111. It makes no difference if the transaction out of which the claim arose took place before the marriage. Fourthman v. Fourthman, 15 Ind. App. 199, 43 N. E. 965; Second Nat. Bank v. Merrill, 81 Wis. 142, 50 N. W. 503, 29 Am. St. Rep. 877; Stockwell v. Stockwell's Est. (Vt.), 105 Atl. 30. But see Enwright v. Griffith (Wis.), 172 N. W. 156. In Mississippi where all disabilities of coverture are removed the statute runs against the wife's

the statute. Hopson v. Fowlkes, 92 Tenn. 697, 23 S. W. 55, 23 L. R. A. 805, 36 Am. St. Rep. 120.