Opinion of the Court-Upton, J.

The authorities cited to show that alimony is not always settled at the time the divorce is decreed, do not go to the extent that is claimed in this case. None of them go further than that the Court may first pass upon the question of granting or denying the divorce, and afterwards, in the same suit, investigate and determine the issues concerning property. The present proceeding must be treated as an original suit; the decree in the suit for divorce having become final, cannot be disturbed, nor can any further proceedings be had in that suit, unless by a suit in the nature of a bill of review. The facts stated in this complaint do not authorize the Court to review that decree. It is not shown that the alleged fraud has been discovered since the trial of the divorce suit, nor that the plaintiff has discovered proof since that time. The plaintiff should have shown some sufficient excuse for not claiming the property at that time. When one seeks to open a judgment or decree, it should be shown by a statement of facts that the party applying is without fault, or that the neglect is excusable.

The statement that "the situation of the said property was such that she could not successfully claim or enforce her rights to a share of it in said suit," is relied upon in this particular, and more especially inasmuch as the defendant filed an answer without objecting to the form of the allegation in the complaint. But this statement contains no allegation of fact. There is nothing in it upon which the defendant could, by his denial, present an issue of fact. If the situation of the property is shown, it is shown by other allegations of the complaint and not by this. This simply states the opinion or conclusion that the facts could not be set up in the divorce suit. In other words, it is an attempt to state the law, and I think it states the law incorrectly. As between the plaintiff and her husband, she had a right in her complaint to make an exhibit of her husband's pecuniary condition in order to lay the foundation for obtaining alimony. And if that proceeding raised issues that could not be determined "without prejudice to the rights of others," by 40 of the Code the Court had power to "cause them to be brought in." And by 2 242 and 397: "In an

Opinion of the Court-Upton, J.

action [or suit] against several defendants the Court may in its discretion render judgment [or decree] against one or more of them, whenever a several judgment [or decree] is proper, leaving the action [or suit] to proceed against the others."

It necessarily follows either that the wife may proceed against the husband alone, in the divorce suit to obtain alimony, on the ground that those who have purchased are not necessary parties, or that she may compel them to appear in that Court to defend. If it be true that their claim to the land is fraudulent and void she would have been entitled, if successful in her suit for divorce, to obtain a share of the land and to have it decreed to her in the divorce suit. If she believed their claims void she had a right to proceed against the husband, treating the land as his property, and if issue was taken on the point whether or not it is the husband's property, no reason can be perceived why that issue may not be tried in a suit for divorce. The question whether third parties claiming as purchasers are necessary parties is not important in this connection. It is sufficient that, if they are necessary parties, they may be joined.

It appears from the transcript that the questions of fact relating to the rights of the parties were investigated on the trial of this cause in the Circuit Court, and it is claimed that defects in the pleadings should be disregarded as not affecting substantial rights. I am of opinion that the defect is such as cannot be disregarded under that rule, and that the complaint cannot be sustained without amendment. The power to permit amendments to pleadings is deemed a discretionary power vested in the Circuit Court. It does not appear that leave to amend has been applied for in the Circuit Court, and it certainly would not be in harmony with the spirit of our system of jurisprudence for this Court to retry the cause upon issues that have never been presented in the Circuit Court.

This Court is clearly of opinion that the facts set forth in the complaint are not sufficient to enable the Court to pass finally upon the merits of the case sought to be pre

Argument for Appellant.

sented, and that it is not within the province of this Court, upon an application originating here, to permit such amendments as would bring the merits of the case before us for adjudication. It is also thought by a majority of the Court that the contrariety of opinion that has prevailed as to the construction and effect of 495 of the Code as amended, to some extent excuses failure to apply before trial in the Circuit Court for leave to amend; and since the dismissal of this suit on the ground that the complaint does not state sufficient facts, would leave the real controversy undetermined, and probably open to another proceeding, it is deemed proper, under the peculiar circumstances of the case, to direct the case to be remanded to the Circuit Court for further proceedings, in order that the appellant may apply to the discretion of that Court for leave to amend her complaint.

JOHN TORRENCE, RESPONDENT, v. WILLIAM STRONG,
ADMINISTRATOR OF THE ESTATE OF AMORY HOL-
BROOK, DECEASED, APPELLANT.

DEFENSE WHEN CANNOT BE DEMURRED to.— -When a defense is set forth in
proper form, containing facts within itself sufficient to constitute a de-
fense, it cannot be demurred out. It may, if false, be stricken out on
motion.

STATUTE OF LIMITATIONS.—A payment by an attorney of the principal or interest on demands collected by him for his client prevents the operation of the Statute of Limitations to bar the client's right of action against such attorney for collections retained by him.

JURY ARE PRESUMED TO FIND.-The jury are presumed to find every material allegation in the complaint in favor of the plaintiff, where a general verdict has been rendered in his favor in the Court below.

APPEAL from Multnomah County.

The facts are stated in the opinion of the Court.

Strong & Trimble, for Appellant.

A part payment of a debt to take it out of the Statute of Limitations must be on account of the particular debt for which the action is brought and must be made only as a part payment of a larger debt. Unless it amounts to an ad

Argument for Appellant.

mission that more is due, it cannot be regarded as an admission of a still existing debt; and in the absence of conclusive testimony it will not be regarded as an admission of any more debt than it pays. (3 Parson on Con. 67, 69, 71; 2 Greenl. on Ev., 445; Ang. on Limit., 244.) The payment of money on an account is no admission of an unsettled account beyond the amount paid. (3 Parson on Con. 67, and note 1.)

The statute (Civ. Code, 25) fixes the time when the Statute of Limitations commences running in case of payment of principal or interest, and shows that it has reference to the part payment of a debt as contradistinguished from an open or unsettled account. The demand of respondent against Holbrook was not a debt and the payments made by the latter were not payments of either principal or interest of a debt.

Moneys collected on debts of another are not matters of open and running account within the statute. (Maury v. Mason, 8 Porter, Ala. 211; 2 U. S. Eq. Dig. 264.) To constitute mutual accounts there must be items within the period limited by statute on both sides of the account. (Gulick v. Turnpike Co., 2 Green, 545; 5 U. S. Dig. 365.) Where one receives several debts of another for collection and collects them at different times, the amounts received on the respective debts are distinct debts from the collector to the owner, and the fact that one debt so collected has been paid to the owner does not prevent the collector from setting up the statute in bar of an action for the recovery of the others; nor will the payment of one debt to the owner constitute an admission of another. (8 Porter, 211; 2 U. S. Eq. Dig. 264.) Where payments on account are made by one party, for which the other gives credit, it is an account. without reciprocity, and only upon one side. Payments do not constitute a part of a mutual account. (Ang. on Limit.,

149; 7 Halst. R. (N. J.) 339; Bennett v. Davis, 1 N. H. 19; Kimball v. Brown, 7 Wend. R. 322; 35 Cal. 122.) Mere disconnected accounts are not such running accounts as will take a case out of the Statute of Limitations. (Green v. Caldeleugh, 1 Dev. & Bat. 320.)

Argument for Respondents.

It is contended by respondent that the relation of trustee and cestui que trust existed between Holbrook and respondent and that the Statute of Limitations does not apply in such a case. Constructive trusts, resulting from agencies, partnerships and the like, are subject to the Statute of Limitations. (Farman v. Brooks, 9 Pick. 243.)

The trusts intended by Courts of equity not to be reached or affected by the Statute of Limitations are those technical and continuing trusts which are not at all cognizable at law, but fall within the exclusive jurisdiction of a Court of equity. (Murray v. Coster, 20 John. R. 583; Finney v. Cochran, 1 Watts & Serg. 112; 5 U. S. Dig. 349; 48 Penn. 518.)

The Statute of Limitations may be pleaded by an attorney in a suit brought against him by his client. (Hicox v. Hicox, 13 Barb. 632; 7 Greenl. on Ev. 298; 5 Hill, 398; 48 Penn. 518, 524.) Such action must be brought within six years after the money is received. The fact that a demand was not made within six years before suit is brought will not save the statute. (Stafford v. Richardson, 15 Wend. R. 392; 1 Am. Leading Cas. 707; 5 Hill, 398; 31 Ill. 398.)

The Circuit Court has no power to appoint a guardian ad litem in the case of lunatics. This control is vested exclusively in the County Court. (Civ. Code, ? 869.)

Page & Thayer, for Respondents.

The facts set out in the complaint show that the statute could not have run and the plea admits those facts. (Strong Eq. Pl., 754.)

Pleadings in such cases should conform to equity pleadings at common law. (36 Barb. R. 628; 19 Cal. 476.)

The transaction described in the complaint was in the nature of a continuing trust, and the statute would not begin to run until after a demand was made. (19 Cal. 173; 7 Wend. R. 322; 5 Barb. R. 585; 5 Hill, 2398; 2 Sandf. R. 142; 36 Barb. R. 662; 39 Barb. R. 634; Ang. on Limit. 170, 175, 176, 177.) Defendant's liability was upon an existing contract upon which partial payments had been made, and in such cases the period of limitation is from the time those payments are made. (Civ. Code, ? 3.)