Hayward v. Gunn

Citations

• 82 Ill. 385

Syllabus

<p>1. Limitation—when a trust is exempt from the har of statute. To exempt a trust from the bar of the Statute of Limitations, it must, first, be a direct trust; second, it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and, third, the question must arise between the trustee and the cestui que trust.</p> <p>3. Hence, where money is placed in the hands of an agent for a particular use, the surplus, if any, to be refunded by him, an action at law to recover such surplus will be barred by the Statute of Limitations, by the lapse of the statutory period after a breach of the duty resting on the agent to return the surplus.</p> <p>3. Same—effect of Married Women's Lam of 1861 on statute. The effect of' the act of 1861, investing married women with the sole control of their separate property, was, as to such property, to place them in precisely the same position, so far as the Statute of Limitations is concerned, as they would occupy if unmarried.</p> <p>4. Evidence—-failure to render hill of items not ground for disregarding testimony of party in regard to. The inability or refusal of a party testifying to a demand to render an itemized account, is a circumstance that might tend to weaken the effect of his testimony, but it is not conclusive proof that the testimony is false, nor should the jury be instructed to disregard the testimony in the absence of such an account.</p> <p>5. Statute op Frauds—whether undertaking is collateral or original. Where a woman puts notes in the hands of an attorney to be collected, and the proceeds applied to the payment of a debt for which her husband’s property has been sold' and the costs of the proceedings against her, with the agreement that when the notes are paid the certificate of purchase shall be assigned to her, such transaction on her part is an original undertaking, and not a promise to pay the debt of another, and, hence, not within the Statute of Frauds.</p>