#### JAMES BUCHANAN AND WIFE vs. EZEKIEL H. PARKER.

A mother, who had money belonging to her children, advanced the money to the defendant, for the purpose of his purchasing negroes'in North Garoliná and delivering them to her in Georgia, where she resided — Held, that she éould maintain this'action for the money so advanced, in her own name; the defendant never having bought the negroes, and not having been advised that a part of the money belonged to her children.

Held, secondly, that, though the plaintiff admitted'he had received a part of the money by an attachment in Georgia, the defendant could not say the contract was merged in a judgment, unless he produced the record of the attachment in1 Georgia.

Held, thirdly, that in sutíh a case as this, the statute of limitations did not apply until after a demand by the plaintiffs on the defendant.

If the act of 1815 will not bar, by the lapse three vears, where the defendant is an agent, neither will the act of 1826, because there must be a: cause of action subsisting, before the time uhder either statute can com--menee running.

Appeal from the Superior Court of Law of Columbus county, at the Spring Term, 1.845, his Honor Judge Pearson presiding.

This was an action of assumpsit, for money had’ and received to the use of the plaintiffs. Pleas :• t! Non assumpsit',- and the statute of limitations.” The case-appeared to be this:' In the year 1832, the plaintiff, Unicia, then the widow of one McCullough, and a resident of the State of Georgia, placed’ in the' hands-of the defendant $700, that he might- purchase fof *598her two negro boys in North Carolina, where he was then go-*n£> and bring them out to her in Georgia. She told hiin, that, if the said sum of money should not be 'enough, she wou],j thank him to make up the balance, and she would repay him when he got back, to which he assented. The defendant came, to North Carolina and never returned to Georgia. Mrs. McCullough married Buchanan in the year 1835. A demand was made on the defendant for $536, in the Spring of the year, 1843; and this action was brought on the 2nd of September, 1843.. When the plaintiff, Buchanan, demanded the said sum of money, he admitted that he had received the residue of the $700, out of the effects of the defendant, by an attachment in Georgia. He said that the money belonged to his wife’s two children, by a former husband, and that she had been obliged to account with them for it.

It was insisted by the defendant, on the trial, 1st. That the action should hatfe been brought in the names of the two children ; 2ndly. That as the plaintiff admitted he had received a part of the claim, under an attachment in Georgia, the jury should infer that the whole simple contract debt was merged in the judgment on that attachment,* 3dly. That the acts of limitation of 1815 and 1826, barred the plaintiff’s claim. Under the charge of the-judge, the jury found for the plaintiffs, and the defendant appealed.

Warren Winslow for the plaintiffs.

Strange for the defendant:

On the question of the statute of limitations, it seems to me that the case of Baines v. Williams, 3 Ired. 48!, is in point; but if not, then on principle.

1. The cause of action was complete against the defendant upon the plaintiffs’ own shewing, within a reasonable time after the contract was entered into. Comyn’s Dig. Title Condition, G. 5. Coke upon Little 208, b. Could the plaintiff have been nonsuited, if, after having waited a reasonable time, she had sued the defendant for a breach of his contract? Certainly not. The case of Battley v. FalJener, 3 Barn. <fc *599Aid. 288, was for the delivery of wheat, and the only thing that distinguishes that case from this is, that there was in fact a delivery of wheat, different from the contract. In Godin v. Faris, 2 H. B. 14, an action was brought for trespass, but the statute in the particular case was three months; and to get rid of it, it was contended that each new detention was a trespass ; the court however held that the statute barred. In Brown v. Howard, 2 Brod. & Bing. 73, which was an action for laying out money fraudulently, it was held the statute barred, notwithstanding the fraud; and Richardson says the statute bars, because the gist of the action is a promise. In &'hull v. McCarth, 3 Barn. & Aid. 626, for negligently searching, as an attorney in the Bank of England, for evidences of property by which a plaintiff had sustained loss, the statute was held to bar from the time of the negligence, and not of the injury or its discovery. To the same effect is the case of Whitehead v. Howard, 2 Brod. & Bing. 372. In Wallis v. Earl of Thanet, 2 Ad. & Ellis, N. P. 757, the counsel for the defendant, arguendo, refers to the case of Holt v. Hadley, 2 Adol. & Ellis, 758, as establishing the position, that even where a request is necessary to give a cause of action, that demand must be made in a reasonable time. The case of Raphael v. Peckford and another, 5 Manning & Granger, 55 L, was against a common carrier for not delivering goods in a reasonable time, and shews that in every contract in which the time is not fixed, the law implies reasonable time.

2. But in this case, no request is necessary. A request is only necessary to give the plaintiff a cause of action. The books it must be confessed are very meagre upon the subject of request, but surely a man is not entitled to be requested to do that which he has undertaken to do generally, without stipulating for a request, and where the thing is not collateral. Yide Stephens’ N. P. 381.

3. Can the plaintiff shift his cause of action so as to disregard the special contract, and go for money had and received ?- Case v. Roberts, 1 Holts N. P. R. 500, decides that an action will not lie for money had and received where money is placed *600in the hands of another for a specific purpose, unless it be that the trust is closed and that a balance remains in the hands of the trustee. To shew that the plaintiff can not, ^ c[lang¡ng ^is form of action, avoid difficulties which stand-in his way in a contract, which after all is a gravaman of his action, the case of Weall v. King and King, 12 East. 452. In Power v. Wells, 2 Car. .818, it is held that an action for money had and received will not lie where property warranted to be sound is unsound and returned, but the action must be on the contract. Of the same purport is the case of Weston v. Downes, Bough 24. The case of Hunt'v. Silk, 5 East. 449, decides that one party can not rescind a contract for the default . of another, and bring money had and received, unless both parties can be put in statu quo. Towers v. Barnett, 1 T. R. 136, decides that money had and received will lie where, by the terms of the contract, it is in the plaintiff’s power to put an end to it, or the defendant assents to its being put an end to ; but where the contract continues open, the plaintiff can only recover for a breach of it, and must declare on it. And in Pmjne v. Whale, 7 East. 274, even where there was a subsequent express promise to pay, if the horse was unsound, it was held the action for money had and received would not lie, but it must be brought on the special contract. And in Hall v. Haughtman, 2 East. 145, where a seaman had entered into a special contract to go upon a voyage, though wrongfully dismissed by the Captain, he can not bring indebitatus assumpsit for his wages, but must sue on the contract, or sue the Captain for his tortious act. Cooke v. Manstond, 1 New Rep. (4 Bos. &Pul.) 251, decides that wherever there is an open special contract it must be sued upon. In Fitt v. Capanett, 4 Marin & Granger 43 Eng. C. L. R. 898, establishes the doctrine of the foregoing cases, and it is worthy of remark that at this very late day, Maulé J., expresses a doubt whether, even if the .defendant were shewn to be in the wrong, the action for money had and received would lie.

4. But in repudiating the special contract and resorting to ihe action foe money had and received. When was the money *601had and received to the plaintiff’s use? Why, in point of fact, clearly, when the money was actually received. And in point of law, at the same time, vide Com. on Con. 82, and the cases there cited. It is there said, “ Plaintiff may either affirm the contract and bring his action for its breach, of disaf-firm it and bring his action for money had and received.” If the contract is disaffirmed, as it seems it must be to bring this action, then the action must be predicated upon the money’s having been originally received to the plaintiff’s use.

Daniel, J.

First, the charge of his Honor, as to the capacity of the mother to bring the action, we think was right.— The defendant was the agent of the mother, and he received the money from her, as her money, to purchase slaves for her benefit. It does not appear, that the defendant, at the time he received the money, had any notice that the two children had any interest in it. It had no ear-mark, and, therefore, he could not be held liable for it.

Secondly ; the defendant insisted, that the jury should have inferred, as Buchanan admitted he received a part of the, debt, under an attachment in Georgia, that he had in fact and law received the whole. The judge told the jury, that there was no evidence, from which they could make any such inference; and that the plaintiffs were entitled to a verdict for the balance not received. This, we think, was right. The defendant did not produce any record of a judgment in an attachment suit in Georgia, to shew that the simple contract between the parties had been merged in the judgment.

Thirdly ; the defendant relied on the acts of limitation.— The Court charged, thal, although the plaintiffs might, after a reasonable time, have brought an action of assumpsit against the defendant for a breach of a special undertaking on his - part to pürchase the said two negro boys, that did not prevent them from considering the defendant as their agent, up to the demand of the money, which took place within less than three years before the bringing of this action ; that, until the demand. the act of limitations did not commence running, as the *602possession of the agent was not adverse, but was the possession of the principal: and that the cause of action was not cotn- , . píete, until a demand. All the judge said seems to us to be correct> if the defendant had purchased'the two negro boys for the plaintiffs, as he promised, they would not have been considered his negroes ; they must in law have been held by him, as the bailee of the plaintiffs, and, therefore, the act of limitations would not have run against the plaintiffs. So, we think, that the money, with which he was to purchase the slaves, being placed in his hands as an agent by way of trust, remained in the same way, unaffected by the statute of limitations until the demand, or the bringing of the attachment in Georgia, if any was ever brought there, which doth not appear in the cause by any proper evidence. If the act of 1715 does not bar, by the lapse of three years, where the defendant is an agent, neither will the act of 1826; because there must be a cause of action existing before the time, when either of the said acts can commence running. And before the demand by parol in North Carolina, or by suit in Georgia, there was no cause of action existing in this case.

We are of opinion that the judgment for the plaintiffs was proper and must be affirmed.

Per Curiam, Judgment affirmed.