34. Statute bar avoided, when. Trusts in general are not within the operation of the statute, where they are direct and exclusively within the jurisdiction of a court of equity, and the question arises between the trustees and the cestui que trust. 7 Johns. Ch. N. Y. 90 ; 1 Watts, Penn. 275. Ard of this cha racter are the trusts of executors, adminis trators, guardians, assignees of insolvents, and the like. The claim or title of such trustees is that of the cestui que trust. 2 Schoales & L. Ir. Ch. 607. Special limitations to actions at law are made in some states in favor of executors and administrators, modi fying or abrogating the rule in equity ; and as these laws are made in the interest of the trust funds, it is the duty of the executor or administrator to plead the special statute which applies to him as such and protects the estate he represents, though he is not bound to plead the general statute, 13 Mass. 203 ; 3 N. H. 491 ; 15 id. 58.
35. If, however, the trustee deny the right of his cestui que trust, and claim ad versely to him, and these facts come to the knoWledge of the cestui que trust, the statute will begin to run from the time when the facts become known. 3 Sumn. C. C. 466. But trusts cognizable at law are subject to the operation of the statute, including im plied trusts generally. 6 Johns. Ch. N. Y. 110 ; 9 Pick. Mass. 242 ; 17 Yes. Ch. 95 ; I Watts & S. Penn. 112 ; 7 Blackf. lnd. 86 ; 7 B. Monr. Ky. 556 ; 7 S. & M. Miss. 219 ; 4 Ired. No. C. 1 ; 3 Gratt. Va. 373.
36. Principal and agent. The relation of an agent to his principal is a fiduciary one, and the statute does not begin to run so long as there is no breach cf the trust or duty. When, however, there is such a breach, and the principal has knowledge of it, the statute will begin to run. 2 Gill & J. Md. 389 ; 10 Johns. N. Y. 285 ; 6 Cow. N. Y. 376. In many cases, a lawful demand upon the agent to perform his duty, and neglect or refusal to comply, are necessary to constitute a breach. As when money is placed in the hands of an agent with which to purchase property, and the agent neglects to make the purchase, there must be a demand for the money before the statute will begin to run, 5 Ired. No. C. 507 ; so where propertY is placed in the bands of an agent to be sold, and he neglects to sell. 2 Gill & J. Md. 389. If, however, the agent's conduct is such as to amount to a declaration on his part that he will not perform his duty, or if he has dis abled himself from performing it, it is tanta mount to a repudiation of the trust, or an ad vereie claim against the cestui gue trust, and the same consequences follow. No demand
is necessary: the right of action accrues at once upon the deolaration, and the statute then begins to run. 10 Gill & J. Md. 422 ; 1 Rand. Va. 284.
37. But where a demand is necessary, it should itself be made within the limited time ; otherwise an agent might be subject all his lifetime to demands, however stale, 15 Wend. N. Y. 302 ; 17 Mass. 145 ; unless the agent, by his own act, prevents a demand.
6 Cush. Mass. 501. The rendering an un true account by a collection or other agent would seem to be such a breach of duty as to warrant an action without demind, and would therefore set the statute in motion. 17 Mass. 145. If the custom of trade or the law makes it the clear duty of an agent to pay over money collected without a demand, then if the principal has notice the statute begins to• run from the time of collection ; and when there is no such custom or law, if the agent having funds collected gives notice to his principal, the statute will begin to run after the lapse of a reasonable time within which to make the demand, though no de mand be made. 4 Saudf. N. Y. 355.
38. In equity, fraud practised upon the plaintiff so that the fact of his right to sue does not come to his knowledge till after the expiration of the statute of limitations, is held to open the case so that he may bring his action within the time limited, dating from the discovery of the fraud. But herein the courts proceed with great caution, and require not only a clear case of fraudulent concealment, but the absence of negligencm on the part of the party seeking to obviate the statute limitation by the replication of fraud. 7 How. 819 ; 12 Penn. St. 49; 1 Curt. C. C. 390; 5 Johns. Ch. N. Y. 522. In some states, fraudulent concealment of the cause of action is made by statute a cause of exemption from its effect. And the courts construe the saving clause with great strictness, and hold that means of knowledge of the concealment arz equivalent to knowledge in fact. 8 All. Mass. 130; 39 Me. 404. In the absence of statutory provision, the admissibility of the replication. of fraud has been the subject of contradictory decisions in the different states, the weight of authority, perhaps, being in favor of its admissibility. 5 Mas. C. C. 143.