EGERTON v. LOGAN. on the issues found and facts agreed upon. There was not exception to the charge to the jury, who responded to the issues as stated above. And thereupon the court held that plaintiff was entitled to have defendant declared a trustee of the fund collected, and that he have judgment for $1,390.50 and interest, subject to a credit of $300, and commissions allowed defendant for collection, &c. The court also held that the action being one solely cognizable in a court of equity under the former system was not barred by the statute of limitations. Judgment for plaintiff, appeal by defendant. Messrs. W. J. Montgomery and Merrimon, Fuller & Ashe, for plaintiff. Messrs. Reade, Busbee & Busbee, for defendant. SMITH, C. J. The facts disclosed in the pleadings, independently of the finding by the jury, show a case of fraud entitling the plaintiff to relief upon the principle laid down in Lee v. Pearce, 68 N. C., 76, and Harris v. Carstarphen, 69 N. C., 416, "that only the known and definite fiduciary relations by which one person is put in the power of another, are sufficient, under our present judiciary system, to raise a presumption of fraud as a matter of law, to be laid down by the judge as decisive of the issue unless rebutted." The relation of "attorney and client in respect to the matter whereever the relationship exists" is specially mentioned as embraced in the proposition. The verdict but affirms the presumption as one of fact and establishes the invalidity of the assignment to the defendant, and the formal endorsement by which it is attempted to be effected. The only question presented in the record, and necessary to be considered, arises out of the defence set up under the statute of limitations, and this in our opinion is decisive of the case. EGERTON v. LOGAN. The moment the defendant collected the claims the money was received by him to the use of the plaintiff and he became liable to account for the excess in his hands above the proper charges and expenses of collecting and the sum advanced at the time of endorsement when the plaintiff on the 15th day of December, 1870, after payment to the defendant, applied to him for the money or some part of it, and the defendant made no answer to the enquiry "won't you give me any of the money you collected; are you going to keep it all?" It was a clear and distinct demand and refusal, which entitled the plaintiff to an immediate action, and at once put the statute in operation. Unless this effect is allowed to his silence and conduct, a party may always evade the consequences of a necessary previous demand by refusing to make a response. The application is for moneys belonging to the plaintiff, then in the hands of the defendant, which it was the legal duty of the latter to account for and pay over, and no excuse is offered for his failure to do so. This is a plain denial of the plaintiff's right and manifests the intention of the defendant to retain the moneys as his own. This result is not affected by the more formal and peremptory demand afterwards made and which met a refusal equally unequivocal and decisive. As the action is not brought within three years thereafter the statute interposes its barrier to the recovery. The form of the demand is not essential to its efficacy. It is sufficient when it serves to inform the agent that the money in his possession is wanted by the principal and affords him opportunity to pay it, and the neglect to do so puts him in the wrong and exposes him to the action for money had and received to the plaintiff's use. The court below put the plaintiff's claim upon one of two grounds: 1st, an express trust by force of the words, "if I collect the notes I will do what is right," to which the statute does not apply until the trust is closed, or adversary EGERTON v. LOGAN. relations assumed between the parties; or 2d, a newly discovered fraud, cognizable alone under the former system in a court of equity as to which the statute begins to run from the time of discovery of the facts in which it consists. C. C. P., § 34 (9). We find some difficulty in reconciling the findings of the jury upon the second and third issues, since if the demand specified in the last was, and we think it is, legally sufficient, whereby the obligation of the defendant is disowned, the trust repudiated, and the intended fraud consummated, (and its essential and controlling element is the misappropriation of the fund to the trustee's own benefit) we are unable to see why all "the facts constituting the fraud" were not then fully known to the plaintiff within the meaning of the statute. The subsequent is but a repetition of a former refusal, and discloses no new fact not already known to the plaintiff, so that in this aspect of the case the action is also barred. If the express trust alleged to arise out of the vague and indefinite words used by the defendant at the time of transfer was not determined by the first demand, and the antagonistic relations thereby produced, it is nevertheless manifest that there are concurrent remedies at law and in equity, and hence the case does not come within the saving of the statute. We have already said that the action for money had and received was open to the plaintiff, and in support of the proposition refer to Bahnsen v. Clemmons, 79 N. C., 556. It lies when "the defendant has recovered or obtained possession of the money of the plaintiff which in equity and good conscience he ought to pay over to the plaintiff." It is, however, suggested in the argument for the plaintiff, that as the fraud is not in the act of endorsement but in the influence and means employed to procure it, a court EGERTON v. LOGAN. of equity is alone competent to give relief, and therefore the statute begins to run at the date of its discovery. But this rule applies only to deeds and written instruments under seal, and thus far is supported by the cases cited for the plaintiff. Logan v. Simmons, 1 Dev. & Bat., 13; Gant v. Hunsucker, 12 Ire., 254, and other more recent decisions. The rule does not extend to other executed contracts, whether in writing or by parol. We have familiar instances of its operation, where a vendor of goods, even after sale and delivery, retains his property therein and may sue and recover possession, when the sale has been induced by false and fraudulent representations, of which Wilson v. White, 80 N. C., 280, is the most recent example in our own reports. The sale is treated as a nullity conveying no title, at the vendor's option, as is the alleged assignment under which the defendant claims the notes and the money due on them. In whatever aspect the facts of the case may be viewed, quacunque via data est, the plaintiff encounters the same insuperable obstacle resulting from his delay, and the statute which but speaks the voice of the pre-existing law, arrests the prosecution of the cause. Blount v. Parker, 78 N. C., 128. We determine the case upon strict principles of law which alone it is our duty to expound and enforce. Yet we cannot refrain from marking our strong disapprobation of the wrong done an ignorant and unlettered client by an attorney to whom he had committed his interests and given his confidence, successful through the influence of fiduciary relations the most sacred, and now beyond redress. But ignorance does not suspend the onward movement of the statute, and the plaintiff's forbearance puts an end to his remedy. There is error. The judgment must be reversed and judgment entered here that the defendant go without delay. Reversed. Error. BRANCH v. FRANK. BRANCH & POPE v. FRANK & ADLER. Attachment-Affidavit for, and Proceedings in. 1. It is not necessary that the affidavit upon which an attachment is sought should state either that the court has jurisdiction of the subject matter of the action, or that the defendant has property in this state. 2. It is error to discharge an attachment, granted as ancillary to an action, because of the insufficiency of the affidavit to obtain service of the summons by publication, for it is possible that the defect may be cured by amendment. MOTION to vacate an Order of Attachment heard at Spring Term, 1879, of HALIFAX Superior Court, before Eure, J. The affidavit of plaintiffs upon which the order of attachment was issued is substantially as follows: 1. That the plaintiffs are partners doing business in Enfield, N. C., and the defendants, in Baltimore. 2. That on or about the 13th of September, 1878, plaintiffs bought of defendants goods to the amount of seven hundred dollars, in the city of Baltimore, for sale by plaintiffs in Enfield. 3. That defendants then agreed to forward the goods without delay, but disregarding their promise, they failed and refused to forward the same till about the 25th of September, 1878; and by reason of the delay the plaintiffs were injured and wrongfully delayed in reselling the goods, by which they sustained damage to the amount of two hundred and fifty dollars. 4. That by reason thereof, the plaintiffs were injured in their credit and good standing as merchants to the amount of two hundred dollars, and they believe they are entitled to said sum. 5. That plaintiffs have commenced an action in this cause |