Hart's Appeal from Probate

Hinman, C. J. 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 — 538 — proper course to leave the law upou this subject to be considered when the question arises under such circumstances as render it necessary to determine it. 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 — 539 — by the statute of limitations as it existed previous to 1855, and is still barred by the express language of the statute if an attempt should be made to enforce it by an action at law, can it be regarded as the intention of the act of 1855 to repeal the limitation in case a party under the authority of that act chose to prosecute his claim on the equity side of the court, while it confessedly would be barred if prosecuted at law? In Robbins v. Harvey, 5 Conn., 835, it was held that where assumpsit was brought for a claim which was the ordinary subject of book debt, the statute of limitations in regard to book debts applied to the case, on the ground that the statute was intended to apply not merely to the form of the action but to the nature of the indebtedness; and it would seem but a fair application of that principle to hold that the statute creating a bar to an action of account, is equally applicable to the account which is attempted to be enforced by a bill in equity, which is now made by statute a concurrent remedy with an action of account. Especially would this seem to be so in Connecticut, where we have been in the habit of treat; ing the statutes of limitation with rather more favor than has been the case elsewhere. Our statute in terms merely applies to an action brought for the recovery of a claim or debt of more than six years standing, but this word u action ” has never been construed in any narrow and technical sense as applying only to a demand made by a plaintiff, but has been extended to a plea of set-off, on the ground that the spirit of the act embraces an outlawed claim which a party attempts to avail himself of by a set-off, as much as the same claim when the party attempts to enforce it by a direct suit; and it is only on the ground of its being within the object and spirit rather than within the letter of the statute that claims presented to commissioners on insolvent estates are held to be subject to the statute of limitations. 1 Swift’s Dig., 307. 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 — 540 — have called it a beneficial statute, and have looked upon the lapse of time prescribed as a bar to the bringing of an action as furnishing a presumption of payment rather than as an arbitrary statutory bar to a valid claim. Judge Hosmer quotes with approbation the language of Chief Justice Parsons, in which he lays down the principle that the presumption from the lapse of time is thai^the defendant has lost the evidence which would have availed him in his defence if seasonably called on for payment; and Judge Daggett expresses his satisfaction in rejecting the grounds on which an attempt was made to evade it. Lord v. Shaler, 3 Conn., 131; Marshall v. Dalliber, 5 id., 480; Weed v. Bishop, 7 id., 128; Peck v. Botsford, id., 172. 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 — 541 — doubt, supposing this to be all there is in the case, that on the receipt of any sum from one of the appellant’s Ohio agents by the agent here, that sum immediately became a debt against the agent here, for which book debt or assumpsit might have been brought ? Is not the duty of a collecting agent to seek his principal and pay over the money collected as obvious and clear as any duty he has to perform ? An action will lie against a sheriff who collects money on execution without any previous demand. And in respect to the moneys collected of the Ohio agents it would seem that Mr* Bull could stand upon no higher ground. Dale v. Birch, 3 Camp., 347; Jefferies v. Sheppard, 3 Barn. & Ald., 696. But if an action could have been brought for this money without a previous demand, then, as the rule must be reciprocal, the statute commenced running at the time the money was received. Lillie v. Hoyt, 5 Hill, 395. It was suggested that there were taxes and other expenses to be paid out of these funds. This however does not appear, and the fact that the money was remitted to Mr. Bull by other agents of Miss Hart residing in Ohio, where the lands were situated, raises a strong presumption that only the net avails, after all charges of this sort had been deducted, were sent to him, so that his only duty must have been to pay over the sums as they were received. We do not see therefore how Mr. Bull’s condition was any thing other than that of an ordinary collecting agent; and if we are correct in this, there can be no doubt that the statute of limitations applies to the case. 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 — 542 — do justice in all eases. But when a case comes by appeal from the commissioners to the superior court, although there are of course the same equitable and legal powers in the court, yet by the rules of practice which prevail in that court the claimant, where he is the appellant, must give the opposite party specific notice of his claim by filing what are called the'' reasons for his appeal. In this ease the appellant might have stated her claim in such a manner as to entitle her to a recovery whether it was an equitable or strictly legal one. But she obviously should be confined in her proof to the reasons she chose to give, since otherwise the rule requiring her - to give reasons, instead of being of any benefit whatever to the appellees, would operate as a snare to mislead and entrap them. But the reasons in this case expressly state that the account presented to the commissioners, the disallowance of which is complained of, was due to the appellant by book, and she makes profert of lier book in the precise form that has, time out of mind, been used in ordinary declarations in an action of book debt, and does not state her claim in any other, form or as arising .in any other way. How then could the auditor treat the claim in any other way than as a claim at law like any other book debt ? And as the statute of limitations is made directly applicable, to the action of book debt, and is held to apply to a debt by book in whatever form presented, it appears to us that there is no way of avoiding the application of the statute without wholly departing from the claim which the appellant has made upon the record. There was'an attempt to avoid this result by claiming that the language of the second reason for the appeal was general enough to justify proof of any just claim whether legal or equitable, but this we think is not so. Indeed there is really but one reason given for the appeal. What is called the second reason sets up no new or different claim.from the first. It expressly refers to the claim made in the first reason, and is a mere allegation that the commissioners rejected it when they should have allowed it. We are of opinion therefore that so much of the appellant’s — 543 — claim as was of more than six years’ standing at the time of the death of Mr. Bull can not be recovered' against his estate, and so we advise the superior court. In this opinion the other judges concurred.