Statute bar avoided, when. Trusts in gen eral are not within the operation of the stat ute, 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; White v. White, 1 Md. Ch. Dec. 53; Sayles v. Tibbitts, 5 R. I. 79; Farnam v. Brooks, 9 Pick. (Mass.) 212; Morey v. Trust Co., 149 Mass. 253, 21 N. E. 384. And of this character are the trusts of executors, administrators, guardians, as signees of insolvents, and the like. The claim or title of such trustees is that of the cestui que trust; 2 Story, Eq. Jur. 608 ; 2 Sch. & L. 607, 633; Appeal of Norris, 71 Pa. 106. The relation between directors and a corporation has the elements of an express trust, to which the statute does not apply ; Ellis v. Ward (111.) 20 N. E. 671. Special limitations to actions at law are made in some states in favor of executors and admin istrators, modifying or abrogating the rule in equity ; and as these laws are made in the interest of the trust funds, A 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; Brown v. Anderson, 13 Mass. 203; Walter v. Radcliffe, 2 Desaus. (S. C.) 577; Wisner v. Ogden, 4 Wash. C. C. 639, Fed. Cas. No. 17, 914.
If, however, the trustee deny the right of his cestui, que trust, and claim adversely to him, and these facts come to the knowledge of the °Mud que trust, the statute will be gin to run from the time when the facts become known ; Farnam v. Brooks, 9 Pick. (Mass.) 212; Fox v. Cash, 11 Pa. 207; Key v. Hughes's Ex'rs, 32 W. Va. 184, 9 S. E. 77 ; Gisborn v. Ins. Co., 142 U. S. 326, 12 Sup. Ct. 277, 35 L. Ed. 1029. Long lapse of time will defeat the enforcement of a resulting trust ; Smith v. Turley, 32 W. Va. 14, 9 S. E. 46. The rule exempting trusts from the opera tion of the statute does not apply to a re sulting trust in favor of creditors ; Dole v. Wilson, 39 Minn. 330, 40 N. W. 161; Stone v. Brown, 116 Ind. 78,•8 N. E. 392.
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 of the trust or duty; Mc Harry v. Irvin's Ex'r, 85 Ky. 322, 3 S. W. 374, 4 S. W. 800. When, however, there is such a breach, and the principal has knowledge of it, the statute will begin to run ; Green v. Johnson, 3 Gill & J. (Md.) of Hart, 32 Conu. 520. In many caseS a lawful demand 'upon the agent to perform his duty, and neglect or refusal to comply, are neces sary 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 ; Downey v. Garard, 24 Pa. 52; so where property is placed in the hands of an agent to be sold, and he neglects to sell; Green v. Johnson, 3 Gill & J. (Md.) 889. 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 disabled himself from performing it, it is tantamount to a repudiation of the trust, or an adverse claim against the cesturi que trust, and the same consequences follow. No de mand is necessary ; the right of action ac crues at once upon the declaration, and the statute then begins to run; Farmers' & Me chanics' Bank of Georgetown v. Bank, 10 Gill & J. (Md.) 422.
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; Clark v. Moody, 17 Mass. 145; unless the
agent, by his own act, prevents a demand ; Emmons v. Hayward, 6 Cush. (Mass.) 501. The rendering an untrue account by a col lection or other agent would seem to be such a breach of duty as to warrant an action without demand, and would therefore set the statute in motion ; Clark v. Moody, I7 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 with in which to make the demand, though no demand be made ; Lyle v. Murray, 4 Sandf. (N. Y.) 590.
In equity, as has been seen, fraud prac tised upon the plaintiff so that the fact of his right to sue does not come to his knowl edge 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 ; Bisph. Eq. 203; Terry v. Fon taine's Adm'r, 83 Va. 451, 2 S. E. 743. But herein the courts proceed with great caution, and require not only a clear case of lent concealment, but the absence of negli gence on the part of the party seeking to obviate the statute limitation by the replica tion of fraud; Stearns v. Page, 7 How. (U.1 S.) 819, 12 L. Ed. 928; Ferris v. Henderson, 12 Pa. 49, 51 Am. Dec. 580 ; Lawrence v. Trustees, 2 Denio (N. Y.) 577; Way v. Cut ting, 20 N. H. 187. See Kilbourn v. Sunder land, 130 U. S. 505, 9 Sup. Ct. 594, 32 L. Ed. 1005. The concealment must be something more than silence or mere general declara tions or speeches; it must appear that some trick or artifice has been employed to pre vent inquiry or elude investigation, or calcu lated to mislead or hinder the party from obtaining information by the use of ordinary diligence; or it must appear that the facts were misrepresented to or concealed from the party by some positive act or declaration when inquiry was made; Stone v. Brown, 116 Ind..78, 18 N. E. 392; Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. Ed. 719. In some states, fraudulent concealment of the cause of action is made by statute a cause of exemption from its effect in courts of law as well as of equity. And the courts construe the saving clause with great strict ness, and hold that means of knowledge of the, concealment are equivalent to knowledge in fact; Nudd v. Hamblin, 8 Allen (Mass.) 130; Rouse v. Southard, 39 Me. 404. In the absence of statutory provision, the admissi bility of the replication of fraud in courts of law has been the subject of contradictory decisions in the different states. In New York (Troup v. Smith's Ex'rs, 20 Johns. 33), in Virginia (Rice v. White, 4 Leigh 474), and in North Carolina (Hamilton v. Shop perd, 7 N. C. 115), it is inadmissible. But in the United States courts (Jones v. Van Doren, 130 U. S. 684, 9 Sup. Ct. 685, 32 L. Ed. 1077), Pennsylvania (McDowell v. Young, 12 S. & R. 128), Indiana (Raymond v. Simon son, 4 Blackf. 85), New Hampshire (Douglas v. Elkins, 28 N. H. 26), South Carolina (Beck v. Searson, 8 Rich. Eq. 130), Virginia (Terry v. Fontaine's Adm'r, 83 Va. 451, 2 S. E. 743), it is held to be admissible ; Sher wood v. Sutton, 5 Mas. 143, Fed. Cas. No. 12,782; and this is the rule generally preva lent in the United States.