#### *Kinney’s Executors v. McClure.

February, 1823.

Chancery Practice — Recovery of Money from Attorney —Statute of Limitations.* — The act of limitations is a good plea to a suit in equity, brought to recover money collected by an attorney for the plaintiff, and not accounted for by him.

This was an appeal from the Staunton chancery court. Many points were made in the argument; but, as the court only decided one point, viz.: the propriety of the plea of the act of limitations, this report will be confined to that part of the subject.

McClure, as surviving partner of Hart, Miller, &c. filed a bill against Ann Kinney, &c. executors of Jacob Kinney, deceased, and the devisees of the real estate, to recover a sum of money which the complainants had put into the hands of the said Jacob Kinney, as an attorney, to collect; and which, they alleged, he had collected, and failed to pay over to the complainants. The bill prays, that the real estate may be subjected to the payment of the debt, in the event that the personal estate should not be sufficient.

Two receipts are exhibited, signed by Jacob Kinney, and dated in 1802, in these words: “Received Jacob Swoope’s assumpsit for 351. 15s. 5d. in part of this execution;” and the other: “Received Jacob Swoope’s assumpsit for the within sum of 2891. 4s. 7d. in full of the within execution.”

The executors disclaim all personal knowledge of the transaction stated in the bill, but admit the hand-writing of Jacob Kinney, in the receipt above mentioned. They contend, however, that the money ought to be presumed to have been paid, as it was improbable that their testator should have retained so large a sum of money, from 1802 until 1S12, (the time of the testator’s death.) They also plead the act of limitations.

*The cause was sent to a commissioner, to ascertain the amount of the plaintiff’s claim, who reported 3221. 5s. 9d. to be due.

The deposition of Jacob Swoope stated, that he, being indebted to Kinnerly, (the person against whom McClure & Co. had obtained judgment, by Jacob Kinney, their attorney,) he agreed with Jacob Kinney, as agent of McClure & Co. to pay about $1000 on account of Kinnerly, and in part satisfaction of the judgment which McClure, Brydie & Co. had obtained against the said Kinnerly; that Kinney knowing the affairs of Kinnerly to be desperate, agreed to take the said Swoope’s notes, payable in four and five years, without interest; that the said notes were paid when due, &c.

James Bullock deposed, that, in the year 1810, he was requested by William Brown, cf the firm of William Brown & Co. to examine in the clerk’s office of Augusta county, and see what had been done with the bonds executed by Reuben and William Kinnerly, to McClure, Brydie & Co., Brydie, Brown & Co., or Miller, Hart & Co.; and, if possible, to get the money for those claims, given to Jacob Kinney to collect, as an attorney, many years previous: that, upon examination, he found two or three of the executions returned satisfied, or nearly so, by Kinney himself, (as well as he recollects,) as far back as :l 802: that he saw Jacob Kinney on the same day, and told him of the return made upon the executions, and demanded payment: that Kinney shewed the deponent his brother Chesley Kinney’s bonds, (which he had taken on account of the said debts,) and offered to deliver them to the deponent in discharge of the said claims: that the deponent refused to accept them, but said he would take, in discharge thereof, bonds of responsible men: that, to this, Kinney made no reply, and left the deponent abruptly: that, upon seeing Kinney again he told the deponent that if his brother did not discharge the bonds at a very early period, he would; and that he would write to Mr. *Brown upon the subject: that the deponent met Kinney some time •afterwards in Cnarlottesville, and mentioned the subject of those debts again; he leplied they were not collected, but would be very soon;- and that he had written to Mr. Brown, apprising him of the transfer, and that he would pay the debt himself, if the money was not paid by his brother very shortly.

Accounts were made up by the commissioner of the administration of the real sonal estate, and of the value of the real estate.

The chancellor decreed, that the complainant should recover of the defendants the sum of 3221. 5s. 9d. with interest from the 27th of March, 1802; and as it appears that the executors have disbursed all the personal estate of their testator, &c., and the court being of opinion, that the real estate of the testator is subjected, by his will, to the payment of the monies aforesaid; it is therefore decreed, that unless the defendants pay to the complainant the said sum of money, on or before the 1st day of February next, so much of the real estate shall be sold, as will be sufficient to discharge the said debt, &c.

From this decree, the defendants appealed.

Johnson, for the appellants.

Call, for the appellee.

It was said by the appellants’ counsel, that this claim was barred by the act of limitations, unless the assumpsit to James Bullock, took the case out of its operation. He contended, that the testimony of Bullock did not apply to this claim; and, therefore, the act was left in full operation.

The counsel for the appellee answered, that Jacob Kinney was a trustee for the *108clients, whose money he had collected, and therefore the act of limitations would not apply to the case.

*To this it was replied, that an attorney did not come under the description of a trustee, within the meaning of the rule. The situation of attornies would be truly perilous, if the act of limitations did not apply to' them. They and their posterity, might be made to account, at any distance of time, for all the monies collected during their lives, when all the evidences of payment may have been lost. An attorney cannot be considered as a trustee, because the proper action against them, is an action on the case, or a motion under the act of Assembly, and not a bill in equity to enforce the trust. A sheriff is not protected by the act, only because the debt is proved by record, or covered by his bond of office. An executor too' is a trustee, because he has the legal estate, and the legatee must bring a suit in equity. These cases are wholly different from that of an attorney. The testimony of Bullock, does not apply to the case before the court.

*

To the point that an attorney at law is entitled to the protection of the statute of limitations, the principal case is cited in Williams v. Lewis, 5 Leigh 691.

See further, monographic *note*on “Limitation of Actions” appended to Herrington v. Harkins, 1 Roh. 591.

JUDGE BROOKE,

February 5. — delivered the opinion of the court.

The court is of opinion, that the evidence in the record, is not sufficient to repel the plea of the acts of limitations. The decree is, therefore, reversed, and the bill dismissed.