¶1Action for money had and. received, commenced February, 1874. Appellant being a private banker and collecting agent, received from appellees certain notes for collection, in 1870. These notes were collected in 1872, except one, which, was put in judgment and not yet paid.
¶2The agent of appellees testifies that appellant told him, in 1872, that he had collected all the notes, except one for $9, and the one in judgment; that from time to time he wrote appellant but could get no reply.
¶3Stevens, for appellees, states that he called upon Cagwin about two years ago with the claim. That Cagwin told him the money had been collected, but thought it had been all closed up. There might be $60 or $70 still due from him on account of it; if there was anything due he was willing to pay it, but he did not know that anything was due; never admitted any definite amount to be due; never promised to pay any definite amount.
¶4The court found the issues upon the Statutes of Limitations, and upon the replication of a new promise in favor of plaintiff below, and rendered judgment for $274.
¶5It is claimed, in support of this finding, that the judgment on one of the notes before the justice not having been paid, the plaintiff could not sue until all was collected, and hence the statute is not a bar.
¶6This argument .proves too much, for if plaintiff could not sue for any until all was collected, no cause of action has yet accrued, as the appellant has never been able to collect the judgment.
¶7As fast as appellant collected the amount due upon any one of the notes, he should have paid it over at once, and if he neglected or refused so to do, appellees could have maintained an action for it.
¶8The statute commences to run from the time the cause of action accrues, which in this case was when the money was received by appellant, as there is no replication to the plea that he fraudulently concealed the cause of action, and no proof in the record to sustain such, if pleaded. The point made that the sums thus collected were trust funds, and therefore not within the statute, cannot be sustained under the authority of Hayward v. Green, 82 Ill. 389, where it is said: “To exempt a trust from the bar of the statute it must be, first, 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.”
¶9There is no such trust here.
¶10The evidence of a new promise is wholly insufficient to take the case out of the statute.
¶11A promise to pay what is due, if anything, at the same time insisting there is nothing due, has never been held sufficient.
¶12Such admissions are too uncertain and indeterminate to be acted upon: Carroll v. Forsyth, 69 Ill. 127; Wachter v. Albee, 80 Ill. 47.
¶13We are of the opinion that the bar of the statute is complete.
¶14The judgment must be reversed and cause remanded.
¶15Judgment reversed.