¶1 In this Court, no counsel appeared, and the opinion, of the Court was delivered by
¶2 Tayxor, Chief-Justice :
¶3 Both the law and justice of this case have been in my opinion, duly administered, for the Defendant had done no act to put him in the wrong. He was not bound to leave the State to go in pursuit of the Plaintiff', and the latter had no agent here, to whom the payment could be made. If a man receive money to a special purpose, as to account or merchandize, it cannot be demanded of him as a duty, till he has neglected or refused to apply it according to the trust, under which lie received it, and *80 the declaration must shew a misapplication, or bread) of trust; and though a verdict for the Plaintiff will aid such a declaration, and it will be presumed afterwards, that the Defendant refused to account, yet here the objection was taken at the trial, and the point reserved.— The law distinctly recognizes the principle, that if goods are consigned to a factor for sale on commission, that a contract arises, that he will account for such as are sold, pay over the proceeds, and re-deliver the residue unsold, whenever a demand is made. Nor will an action lie against him for not accounting, till after a demand made of an account; and from that period only, will the statute of limitations begin to run against the Plaintiff.
¶4 If this is a just rule as applicable to persons living under the same government; it is more so, where the Plaintiff has left the country, and put it out of the Defendants power to pay the money. (1 Salk. 9—1 T aunton, 571.) I therefore think, a non suit ought to be entered up.
¶5 Judgment ' apeirmer.