remedy is not barred.74 But if a statute is in such terms that the vital question is the character of the cause of action, neither the form of the proceeding nor the name by which it may be called can have any influence on the question whether the statute applies.75 Even though a statute is in the latter form, however, the law not infrequently gives an injured party not merely alternative remedies, but alternative rights, and here the statute cannot run on one merely because the other has arisen. Thus previous conversion by a bailee will not preclude an action based on the bailor's subsequent refusal to redeliver on demand, and the statute will run from such refusal;76 and other illustrations may be found."

§ 2032. Suits in equity.

In view of the terms of the early English statute, courts of equity were not affected by it in suits for the enforcement of rights cognizable only in such courts; but they followed by analogy the rule provided by the statute for corresponding actions of law,78 and if there was no analogous legal right they applied the more elastic principle that stale demands would not be enforced.79 So far, however, as concerns claims where there has not been fraud or fraudulent concealment, or mistake or any fiduciary relation, it may be said that even in

74 See Stewart v. Sprague, 71 Mich. 50, 38 N. W. 673; Avery v. Miller, 81 Mich. 85, 45 N. W. 503; Stringer v. Stevens' Est., 146 Mich. 181, 109 N. W. 269, 8 L. R. A. (N. S.) 393, 117 Am. St. Rep. 620. Cf. People v. Michigan Central R., 145 Mich. 140, 147, 108 N. W. 772; Lembeck &c. Brewing Co. v. Krause (N. J.), 109 Atl. 293.

75 Thus the statutory right of a creditor of a corporation against a stockholder has been held barred when the statutory period has elapsed from the time when the creditor first had an available remedy against the stockholder. Parmelee v. Price, 208 Ill. 544, 70 N. E. 725; Cottrell v. Manlove, 58 Kan. 405, 49 Pac. 519; Conklin v. Furman, 48 N. Y. 527.

76 Wilkinson v. Verity, L. R. 6 C. P.

206; Moses v. Taylor, 6 Mackey, 255; Ganley v. Troy City Nat. Bank, 98 N. Y. 487.

77 Missouri Sav. &c. Co. v. Rice, 84 Fed. 131, 28 C. C. A. 305; St. Louis, I. M. & S. Ry. Co. v. Sweet, 63 Ark. 563, 40 S. W. 463; Lamb v. Clark, 5 Pick. 193; Ott v. Hood, 152 Wis. 97, 139 N. W. 762, 44 L. R. A. (N. S.) 524, Ann. Cas. 1914 C. 636.

78 Smith v. Clay, 3 Bro. C. C. 639, n.; Hovenden v. Annesley, 2 Sch. & Le F. 607, 630; Allcard v. Skinner, 36 Ch. D. 145, 186.

Most equitable rights are now brought within English Statutes of Limitations. 19 Halsbury's Laws of England, 169.

79 Brooks v. Muckleton, [1909] 2 Ch. 519.

jurisdictions where the statute does not now directly apply to equitable rights, an analogy to legal rights will be found, and will be followed so closely as to make it immaterial that the statute is not directly applicable.80

Courts of equity have, however, a doctrine of their own in regard to laches where rights cognizable only in chancery are concerned or, if special circumstances require its application, where equitable relief is demanded for the enforcement of a right recognized at law. Under this principle, "even if the Statute of Limitations be made applicable in general terms to suits in equity, and not to any particular defence, the defendant may avail himself of the laches of the complainant notwithstanding the time fixed by the statute has not expired." 81

80 Updike v. Mace, 194 Fed. 1001; Presley v. Weakley, 135 Ala. 517, 33 So. 434, 93 Am. St. Rep. 39; Baldwin v. Williams, 74 Ark. 316, 86 S. W. 423, 109 Am. St. Rep. 81; Barnes v. Born, 133 Ind. 169, 30 N. E. 509, 32 N. E. 833; Sioux City, etc., R. Co. v. O'Brien County, 118 Iowa, 582, 92 N. W. 857; McVickar v. Filer, 31 Mich. 304; Tucker v. Linn, (N. J. Eq.), 57 Atl. 1017; John v. Coates, 63 Hun, 460, 18 N. Y. S. 419, affd. 140 N. Y. 634, 35 N. E. 891; In re Bickel's Appeal, 86 Pa. St. 204; Taylor v. Slater, 21 R. I. 104, 41 Atl. 1001; Montgomery v. Noyes, 73 Tex. 203, 11 S. W. 138; Redford v. Clarke, 100 Va. 115, 40 S. E. 630.

81 Patterson v. Hewitt, 195 U. S. 309, 49 L. Ed. 214, 25 S. Ct. 35. See also Whitney v. Fox, 166 U. S. 637, 41 L. Ed. 1145, 17 S. Ct. 713; Scruggs v. Decatur &c. Land Co., 86 Ala. 173, 5 So. 440; Scherer v. Ingerman, 110 Ind. 428, 11 N. E. 8, 12 N. E. 304; Krænung v. Gæhri, 112 Mo. 641, 20 S. W. 661; Hawley v. Von Lanken, 75 Neb. 597, 106 N. W. 456; Calhoun v. Millard, 121 N. Y. 69, 24 N. E. 27, 8 L. R. A. 248; Wilson v. Wilson, 41 Ore. 459, 69 Pac. 923. Cf. Hill v. Nash, 73 Miss. 849, 19 So. 707. In Kelley v. Boettcher, 85 Fed. 55, 62, 29 C. C. A.

14, the court said: "In the application of the doctrine of laches, the settled rule is that courts of equity are not bound by, but that they usually act or refuse to act in analogy to, the Statute of Lmitations relating to actions at law of like character. Rugan v. Sabin, 10 U. S. App. 519, 534, 3 C. C. A. 578, 582, 53 Fed. 415, 420 . . Wood v. Carpenter, 101 U. S. 135, 139, 25 L. Ed. 807. The meaning of this rule is that, under ordinary circumstances, a suit in equity will not be stayed for laches before, and will be stayed after the time fixed by the analogous Statute of Limitations at law; but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the statute, the chancellor will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. Some of the circumstances which will induce a court of equity to apply the doctrine of laches in a shorter time than that fixed by the statute are the destruction of the muniments of title, the death or removal of parties, the number of innocent pur

§ 2033. Statute does not run on trust obligation voluntarily
assumed.

Neither directly nor by analogy does the statute affect the
liability of an express trustee for breach of his equitable duties.8?
And, though the rule is usually stated as confined to express
trustees, it seems applicable to all who voluntarily assume a
fiduciary relation.83 Indeed, though a transaction is not strictly
a trust since the person entrusted with money is not expected
to keep it as a separate res, there may nevertheless be such a
continuing relation of confidence where money is delivered to
be "kept" as to prevent the statute from beginning to run.84
Thus, the statute does not run in favor of a bank on a deposit
account until after a demand, or some act of repudiation by
the bank.85 After the beneficiary has notice of the trustee's
chasers who may be affected, radical
changes in the condition and value
of the property, and its speculative
character. Lemoine v. Dunklin Co.,
10 U. S. App. 227, 239, 2 C. C. A. 343,
348, and 51 Fed. 487, 492."

82 Townshend v. Townshend, 1 Bro.
C. C. 550; Beckford v. Wade, 17 Ves.
87; Petre v. Petre, 1 Drew. 371; Banner
v. Berridge, 18 Ch. D. 254, 262; Pat-
rick v. Simpson, 24 Q. B. D. 128; Smith
v. Dallas Compress Co., 195 Ala. 534,
70 So. 662; Pearl v. Pearl (Cal.), 177
Pac. 845; Varrois v. Gommet (Cal.
App.), 185 Pac. 1001; Hamer v. Sidway,
124 N. Y. 538, 27 N. E. 256, 12 L. R. A.
463, 21 Am. St. Rep. 693; Sheldon v.
Sheldon, 133 N. Y. 1, 30 N. E. 730;
Davidson v. Davidson, 262 Pa. 520,
106 Atl. 65. The matter in England
is now governed by a statute which
subjects certain liabilities of an express
trustee to a period of limitation. See
Re Swain, [1891] 3 Ch. 233; Re Timmis,
[1902] 1 Ch. 176.

83 In Soar v. Ashwell, [1893] 2 Q. B.
390, 394, the court said of a solicitor
into whose hands money had been
put for investment by trustees: "Where
a person has assumed, either with or
without consent, to act as a trustee
of money or other property, i. e., to

act in a fiduciary relation with regard
to it, and has in consequence been in
possession of or has exercised command
or control over such money or prop-
erty, a Court of Equity will impose
upon him all the liabilities of an ex-
press trustee, and will class him with
and will call him an express trustee
of an express trust. The principal
liability of such a trustee is that he
must discharge himself by accounting
to his cestui que trusts for all such
money or property without regard
to lapse of time."

See also Snodgrass v. Snodgrass, 185
Ala. 155, 64 So. 594; Peixouto v. Peix-
outo, (Cal. App.), 181 Pac. 830; Doyle
v. Doyle, 268 Ill. 96, 108 N. E. 796;
Scott v. Dilley, 53 Ind. App. 100,
101 N. E. 313; Martin v. Barnes, 214
Mass. 29, 100 N. E. 1023; Smith v.
Balch, 89 N. J. Eq. 566, 581, 105 Atl.
17.

84 Schmidt v. Schmidt, 216 Mass.
572, 104 N. E. 474; Moore v. O'Hare,
224 Mass. 283, 112 N. E. 863.

85 Re Tidd, [1893] 3 Ch. 154, 156;
State v. Reynolds (Mo.), 213 S. W.
804; Koelzer v. First Nat. Bank, 125
Wis. 595, 104 N. W. 838, 2 L. R. A.
(N. S.) 571, 110 Am. St. Rep. 870.

repudiation of an express trust, the statute begins to run.86
But the mere fact that the trustee had done some acts in con-
travention of the trust, is not enough.8

Unless the local statute clearly requires it, the matter should
not be dealt with on the basis of the remedies invoked by the
plaintiff. Even an express trust may sometimes be enforced by
an action of money had and received, and the remedy of gen-
eral assumpsit was used at common law indiscriminately to
enforce both obligations which were essentially trusts and
obligations to pay money where there was no trust res.

§ 2034. Statute runs on liability of constructive trustee.

On the other hand, where a constructive trust is imposed by
law upon a party without his consent, the statute runs in his
favor.88 Therefore, the statute runs from the time of payment

89

on the right to recover money paid by mistake, though the
mistake is not discovered until later, and in favor of a pur-
chaser from an express trustee with notice of the trust,91 unless
the cestui que trust is in possession of the res.92

§ 2035. Whether statute runs on liability of corporate officer.
It has been held by a number of decisions that the statute
runs in favor of a director or officer of a corporation on his
obligation to the corporation or to its creditors for the proper
fulfillment of his duties.92 On principle, however, it would
seem that such a person is a fiduciary not by imposition of
law but by his own consent, and that the rules governing an
express trustee should be applied; and so it has been held.93

edge of the beneficiary, renounced,
disclaimed or repudiated the trust.
But Edward Lammer was not the
actual trustee of this fund, and he
never acknowledged trust as to the
money loaned him. He could, at
most, have been declared a trustee
ex maleficio or by implication or con-
struction of law, and in such a case
the statute begins to run from the
time the wrong was committed by
which the party became chargeable
as trustee by implication."

89 Baker v. Courage, [1910] 1 K. B.
56; Leather Mfrs. Nat. Bank v. Mer-
chants Bank, 128 U. S. 26, 9 S. Ct. 3,
32 L. Ed. 342; County v. Montgomery,
195 Ala. 197, 70 So. 642; Schultz v.
Cass County, 95 Ind. 323; Sturgis v.
Preston, 134 Mass. 372; Morris v.
Budlong, 78 N. Y. 543; Montgomery's
Appeal, 92 Pa. 202, 37 Am. Rep. 670.

90 See cases in the preceding note.
But by statute in some States the
time is computed from discovery of
the mistake, or from the time when
with reasonable diligence it might
have been discovered. Hayes v. Los
Angeles County, 99 Cal. 74, 33 Pac.
766; Shain v. Sresovich, 104 Cal. 402,
38 Pac. 51; Storm Lake Bank v. Buena
Vista County, 66 Ia. 128, 23 N. W.
297; Nicholson v. Nicholson, 94 Kan.

153, 146 Pac. 340; German Security
Bank v. Columbia &c. Co., 27 Ky.
L. Rep. 581, 85 S. W. 761; Lanning
v. Transylvania County, 106 N. C.
505, 11 S. E. 622.

91 Smith v. Dallas Compress Co., 195
Ala. 534, 70 So. 662.

92 Peixouto v. Peixouto, (Cal. App.)
181 Pac. 830, and cases cited.

92a Rankin v. Cooper, 149 Fed. 1010;
Knowles v. Rome Tribune Co., 127
Ga. 90, 56 S. E. 109; Stone v. Rottman,
183 Mo. 552, 82 S. W. 76; Wallace v.
Lincoln Savings Bank, 89 Tenn. 630,
15 S. W. 448, 24 Am. St. Rep. 625.
See also Re Lands Allotment Co.,
[1894] 1 Ch. 616. In Lippett v. Ash-
ley, 89 Conn. 451, 94 Atl. 995, the
court lay stress on the fact that the
breach of duty was merely passive
negligence, and held that at least in
such a case the statute ran in favor
of the officer. In National Bank of
Commerce v. Wade, 84 Fed. 10, it
was held that the statute did not run
in favor of directors until after they
had surrendered control of the cor-
poration. In Frost v. Arnaud, 144
Ga. 26, 85 S. E. 1028, it was held that
the statute ran in favor of a promoter
in a suit for fraud by subscribers to
the stock of the corporation.

93 In Greenfield Savings Bank v.