The opinion of the Court was delivered by
Kennedy, J.This action was brought in the court below by John Cochran, for his use, in the name of David Ferguson, against Thomas Finney, for money had and received by him for the use of the latter. The first error is a bill of exceptions to the opinion of the court, admitting evidence of the receipt of moneys by the defendant below, more than six years before the commencement of the action. The objection made to the admission of this evidence was, that it went to show moneys received by the defendant more than six years before this suit was brought; and as he had pleaded the statute of limitations in bar to it, the evidence was therefore inadmissible. This was certainly no sufficient objection to the admission of the evidence, because the plaintiff might have other evidence to give which would take the debt created by the receipt of the money, out of the operation of the *118statute; but before he could do this, it was necessary that he should show the previous existence of the debt. The evidence was therefore properly admitted for this purpose.
The second and third errors present but one question; and that is:—'Was the statute of limitations applicable to any portion of the plaintiff’s claim ? The court below held that it was not, and so instructed the jury. In this, however, we are of opinion that the court erred. The opinion of the court seems to have been founded on the idea, that the defendant was a trustee for the plaintiff, and that he received all the money in that character, which the plaintiff sought to recover in this action. No doubt the defendant was a trustee, and as such received the moneys upon the bonds which were committed to his charge by the plaintiff. The receipts given by the defendant for the bonds, upon which he received the moneys afterwards, show clearly that the trust was express and direct. Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued, either at law, for money had and received, or in equity, as a trustee for a breach of trust, per Chief Justice Willes in Scott v. Surman, Willes’ Rep. 404, 405. The l'eciprocal rights and duties, founded upon the various species of bailment, and growing out of those relations, as between “ hirer and letter to hire, borrower and lender, depository and the person depositing, a commissioner and an employer, a receiver and a giver in pledge,” are all cases of express and direct trust; and these contracts, as Sir William Jones observes, (Jones on Bailment, page 3) are “ among the principal springs and wheels of civil society.” Yet it is perfectly clear that the most, if not all of these cases, as also all of the like kind, come within the statute of limitations; see Kane v. Bloodgood, 7 Johns. Ch. Rep. 110, 111, where Chancellor Kent, after reviewing the decisions on this subject, has come to the following conclusion: that 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, bht fall within the proper peculiar and exclusive jurisdiction of a court of equity. And he expressly refuses to give his assent to the proposition, that all cases of direct and express trust, and arising between trustee and cestui que trust, are to be withdrawn from the operation of the statute of limitations, where there is a clear and certain remedy at law. The rule thus laid down by Chancellor Kent seems to be recognized and approved in App. v. Dreisbach, 2 Rawle 302, and Lyon v. Marclay, 1 Watts 275; and indeed it would seem to be dictated not only by authority but sound policy. The word “ trust ” is frequently used in a very comprehensive sense ; and to hold that the statute of limitations is not applicable to any cases which may, even with propriety, be denominated cases of trust, would, in a great measure, defeat, *119as I apprehend, the plain and manifest intention of the legislature. A great proportion of the money transactions in the ordinaxy business of life, where no instrument under seal passes between the parties, would be excluded from its operation, and a flood of litigation arise after a lapse of six years, whiclx, owing to the length of time, it would be in many instances impossible to determine according to truth and justice between the parties. The trust in the present case was clearly cognizable at law: and for a breach of it the plaintiff might, at any time, have maintained an action at law, in order to be redressed, if he had not delayed so long as to let the statute interpose a bar to his doing so. The last of the money received by the defendant in discharge of the four bonds mentioned in his first receipt to the plaintiff was as far back as the 11th of October 1831, something more than eight years anterior to the commencement of this action. The whole of the money received on the three first of these bonds, and a part of that received on the fourth, the defendant, by the terms of the receipt which he gave to the plaintiff" for the bonds, had a right to retain to reimburse him for the twelve hundred and twelve dollars and eighty cents, paid in June 1825, in discharge of his endorsement for the benefit and accommodation of the plaintiff. But the surplus the defendant was bound and ought to have paid or settled in some way with the plaintiff, without delay, after his receipt of it. If he neglected or failed to do this, the plaintiff might have brought his action for the recovery of it immediately, for it had become a debt due to the plaintiff, which the defendant was bound to pay him without even a demand being made for it. His right to maintain such action, thei’efore, accrued at the time the defendant received this surplus; and from that instant the statute of limitations cómmenced running, so that the six years, the time allowed by the statute for commencing suit, had run some two yeai-s and a half before it was commenced. But as regards the money received by the defendant in discharge of the two bonds mentioned in the second receipt, given by him for them to the plaintiff", it would rather seem that the statute of limitations had not run so as to form a bar to the recovery of it. The amount of the last of these two bonds had been received by the defendant within six years before the commencement of the action: and the claim of Mary Milligan not being settled but kept up against the estate of Samuel Finney, deceased, until within six years before commencing the action, the defendant, by the terms of his receipt given for the bonds, liad a right to x-etain the money received upon them until the estate of Samuel Finney should be clearly acquitted of all liability from Milligan’s claim on a bond then in suit against Ferguson and Samuel Finney as bail in the bond of Ferguson; which would' seem not to have been the case, until a judgment was obtained against Ferguson, the plaintiff" here, who it appears is the surviving obligor in the bond with *120Samuel Finney to Mary Milligan, and likewise the surviving defendant in the suit brought by her upon the bond against Finney and him, jointly, wherein the judgment was so obtained on the 28th of March 1840, a few days only before the, commencement of this action.
The fourth error, which is the last, is an exception to that part of the charge of the court, in which they instructed the jury, that “ no money could be retained by the defendant for the bond where Samuel Finney was bail to Mary Milligan. We instruct you as the law of the case, that the estate of Samuel Finney is discharged from any legal claim on the part of Mary Milligan. That by her bringing a suit against David Ferguson and Samuel Finney, jointly, she made them joint obligors; and Samuel Finney dying, pending the suit, and the plaintiff accepting a judgment of the co-obligor, this is a discharge of the estate of Samuel Finney, and, therefore, under the facts disclosed, the defendant can not retain any thing out of this money to secure that estate against any liability on that account—this obligation has ceased.” We can perceive no error in this instruction. The judgment, however, must be reversed on the second and third errors.
Judgment reversed, and a venire de novo awarded.