Dillon

Appeal from judgment and order denying defendant’s motion for a new trial.

Plaintiff, Patrick F. Dillon, brought this action against Patrick Dillon, the father of plaintiff, for an accounting of moneys claimed to have been delivered to said defendant by plaintiff in trust to be held and invested for plaintiff, and for general relief. The cause was tried, and judgment rendered for plaintiff during the lifetime of defendant, who subsequently dying, the executor of his last will was substituted as party defendant. By the term ‘ ‘ defendant, ’ ’ when used in this opinion, we refer to the original defendant.

The action was tried upon the issues raised by the amended complaint and the answer thereto, no demurrer having been filed to the amended complaint.

Before the case came on to be tried defendant made a demand that the cause be tried by a jury, but the court, taldng the view that the action was one in equity, refused the demand for a jury, but allowed a jury as advisory to the court only, and made findings in favor of plaintiff, and gave judgment accordingly.

Acting upon the same theory as to the nature of the action, the court found that the action was not barred by the statute…