Spencer

This is an action to compel the defendant to account for and pay certain moneys alleged to have been received by him and held in trust for the plaintiff.

The cause was tried by the court, written findings filed establishing the trust relation, and finding that there was due to plaintiff the sum of $1,071.85, with interest at seven per cent per annum from May 1, 1870, for which sum judgment was entered in favor of plaintiff. Defendant appeals from the judgment, and the cause comes up on the judgment-roll.

Two errors are assigned by appellant.

1. That the findings do not fix the precise time when plaintiff made demand for return of the moneys, and, in the absence of such a finding, it cannot be ascertained whether the cause of action is barred by the statute of limitations or not. Hence, that the judgment is not supported by the findings.

The complaint averred a demand upon defendant before suit brought, and the answer admitted such demand. So far, therefore, as a demand was a prerequisite to maintaining the action, it was not necessary to prove or find that a demand was made, it not being an issue in the case.

The statute of limitations was pleaded, and became an issue in the…