Gibson

The appellant, Henley, was sued as a member of the law firm of Henley & McSherry, doing business in San Francisco during the year 1892-93, and judgment recovered against him for six hundred and two dollars and fifty cents and costs. McSherry was made party to the complaint, hut was not served. The suit was commenced February 4, 1896, within three years, hut not within two years of the accrual of the cause of action. The defendant pleaded the two years statute. (Code Civ. Proc., sec. 339.) The sole question, involved in this appeal is as to the bar of the statute pleaded; and this, again, turns upon the question whether the action is to be regarded as an action for relief on the ground of fraud or merely as an action on contract, or for money had and received. If the latter, the action is barred; otherwise not. The facts on which the question turns are as follows: Henley and McSherry and one Hart of Hew York were attorneys for the plaintiff in the matter of an estate in process of settlement in Brooklyn, Hew York, in which plaintiff was interested. Hart, on or about February 8, 1893, having collected the money coming to the plaintiff, transmitted to Henley and McSherry, by mail, a…