#### F. & S. WARING vs. DANIEL RICHARDSON.

Where money has been received by an agent, a demand or a misapplication of the money is necessary before an action can be brought, and the Statute of Limitations only begins to run from the time of such demand.

The cases of Potter v. Slurges, 1 Dev. 79, White v. Miller, 3 Dev. 8r Bat. 55, and State v. Sugg, 3 Ire. 96, cited and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1850, his Honor Judge Elus presiding.

This was an action of assumpsit, brought to recover the sum of @61 19, with interest on the same from the 15th of March, 1842. The plaintiffs proved by their agent that on the 15th of March 1S42, the defendant received from them a note to collect as their agent: that the note was the property of the plaintiffs and was originally drawn payable to one.

For the purpose of repelling the plea of the statute of limitations and showing the collection of the note by the defendant, the plaintiffs called a witness, who swore, that, as the attorney of the plaintiffs, he called on the defendant several times within three years before the beginning of this suit, and, in the name of the plaintiffs, demanded payment of the money : that the defendant said he had collected the money. This witness also stated, that the defendant raised no objection to paying said money, and never pretended that he had ever paid, previous to that time, until the last time he called upon him, when he pretended that the plaintiffs had collected the amount of- this claim from another person, against whom he had brought *78a suit. He did not say in this conversation, that he had paid the money himself, but that he was a surety with others of the persons sued, and that the said sureties paid the said claim. The witness said, that this allegation of payment was made only in the last conversation they had on the subject, and that the said claim had not been collected in the said suit. The Court charged the jury, that, if they believed the witness, the plaintiffs were entitled to recover : that the wrnrds used by the defendant, when taken in connexion with the other evidence, was an acknowledgment of an existing debt, from which the law would imply a promise. The jury returned a ver-diet for the plaintiffs. Defendant moved for a rule for a new trial. Rule granted and discharged. Judgment of the Court was rendered, from which defendant prayed ap appeal to the Supreme Court, which was granted.

Heath, for the plaintiffs.

Wo N. H. Smith, for the defendant.

Nash J.

It is deemed unnecessary to decide the question, upon which the opinion of the Judge below7 was given. From the statements of the case, the point did notarise. The plaintiffs had put into the hands of the defendant, for collection, a promissory note, and the ac tion is brought for collecting the money and not paying it over. Among other defences the defendant relied upon the Statute of Limitations. The complaint is not for a breach of duty in collecting, not for undertaking and entering upon an agency, for a compensation, and then either failing to perform it, or performing it so negligently that an injury was sustained by the plaintiffs ; but for the money, secured by the note, which the plaintiffs allege the defendant had received. The pica of the Statute of Limitations assumes or admits, that the money had been received by the defendant, but when it is accompanied *79by the general issue, as in this case, it does not exempt the plaintiffs from the obligation to prove it. Accordingly the plaintiffs did not rely upon this assumption, but gave in evidence the admission of the defendant that he had re* ceived it. ' This admission was made within three years next before the bringing of the action, and when, for the first time, as far as the case discloses, the money was de« manded of him.' The defendant was a collecting agent of the plaintiffs to receive the money. His reception then was a rightful one ; and to give the plaintiff's a right of 1 action for its detention, a demand or evidence of the mis application of the money was necessary, Potter v. Sturges, 1 Dev. 79; White v. Miller, 3 Dev. & Bat. 55; State v. Sugg, 3 Ire. 96; and from the time of the demand the statute began to run. Strike out the admission of the defendant and the demand then made, and there was no evidence in the case that the money ever had been received by him or of any demand upon him. And according to that admission the money might have been received by him the day before. The length of time in which the claim for collection has been in the hands of an agent may, under circumstances, be evidence both of the collecr. tion of the money and its use by him. But the case does not state the length of time the note put into the hands of the defendant had to run, or whether it was then at maturity. We are merely informed that the money had been received by him and that within three years before the bringing of the action, at which time also the demand was made. The statute never was set in motion, according to the case, until the time mentioned in the statute.

Per Curiam. Judgment affirmed.