32 Conn. 520 | Conn. | 1865
The question in this case is, whether the statute of limitations applies to so much of the appellant’s claim against the estate of Mr. Bull as was of more than six years standing at the time of his death. Counsel for the appellant insist that it does not apply, and they cite in support of their claim that class of English and American cases in which it is held that the statute does not run in favor of trustees, stewards, and certain confidential agents, so long as the confidential relation exists. They also cite cases against persons having money in their hands under such circumstances that they are not bound to pay it over to the owners of it until after it has been demanded, in which case, as the money can not be said to be legally due until after such demand, the statute of course does not begin to run until that time.
We have not deemed it necessary to examine these casei particularly, as we are of opinion that they do not apply to the facts of this case. We prefer this course because we are not at this time prepared to say that the rule as against stewards and certain confidential agents, as administered by the courts of equity in England, applies here to the full extent claimed by the appellant; and as we think none of the cases go so far as counsel ask us to go in this case, it appears to us the most
If the question in this case had arisen previous to the statute of 1855 (p. 69 of the acts of that year,) giving to courts of equity “ concurrent jurisdiction with courts of law of all matters remediable by action of account, to be proceeded with in such courts of equity to final decree, according to the common course of proceedings in courts of equity,” it is very clear that the statute of limitations would have been a direct and positive bar to the prosecution of the claim. It is only by virtue of that statute that the appellant claims that a bill in equity is a concurrent remedy with an action of account and might now be brought for her demand, and although an action of account as well as book debt and assumpsit is barred by the statute, yet the appellant insists that a bill in equity is not, and as she is now at liberty to prosecute her demand on the equity side of the court, she has a right to the decree of the court in her favor, although the claim is barred at law. The action of account, book debt, or assumpsit, or whichever of them would have lain for this demand, were and now are perfectly adequate remedies for the claim, and except so far as the act of 1855 has altered the law in respect to matters remediable by the action of account, where there is adequate remedy at law courts of equity have no jurisdiction. We have the qase, then, in which previous to 1855 an action at law was the only remedy for the enforcement of the claim, and in which such an action may still be maintained, since by that act a bill in equity is only made a concurrent remedy with an action of account. Now, as we have seen, if an action at law had been brought, or the demand had rested as a mere demand at law to be prosecuted before commissioners on an insolvent estate, it is not and can not be denied that the statute of limitations would apply to the claim, since the statute is made directly applicable to the actions of account, book debt and assumpsit founded on such a claim as this, which are the only actions that could have been brought for it. Rev. Stat., tit. 81, § 8. But if such a claim was absolutely barred
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
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 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
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 pleadings to embarrass a claimant, and the commissioners must have equitable as well as legal powers or they could not
We are of opinion therefore that so much of the appellant’s
In this opinion the other judges concurred.