The opinion of the Court was delivered by
Mr. Justice Pore.
Paragraphs 1, 2, 3, 4 of the complaint allege that Mrs. A. J. French died intestate in April, 1898; that the plaintiffs were appointed her administrators in May, 1898; that defendant is a resident of Greenville County, S. C.; and that the defendant, on the 20th February, 1890, made his promissory note, whereby he obligated himself to pay to A. J. French $600, with eight per cent, interest, on or before 1st October, 1890, but that he had only paid $100 on said note on the 19th day of November, 1895. All of which allegations were admitted in the answer except the payment of the $100, on 19th November, 1895. This* last was denied, and also all other allegations, in the fifth paragraph of complaint. The answer also set up the plea of the statute of limitations. “IV. The defendant, further answering, alleges that about twenty years ago, Jesse French, sr., departed this life, leaving of full force and effect his last will and testament, wherein he willed and devised to this defendant, who is his grand-son, and who was then a minor, all his property, including money on hand at the time of his death, and also all his real estate; that the said A. J. French, deceased, plaintiff’s intestate, was the widow of the said Jesse French, sr., deceased, i't became her duty to turn over to his executors, for the defendant, all of his money; that she did not do so, but retained in her possession $1,800 of said money, and converted the same to her own use; that the executors of the estate of the said Jesse French, sr., fully administered his estate and were discharged, and never knew that [495]*495the said A. J. French 'had converted said money to her own use; and that this defendant upon arriving at the age of 21 years received all the estate of the said Jesse French, sr., deceased, except the $1,800, but then did not-know and never ascertained until after the death of the said A. J. French that she had converted said money to her own use, as she kept the act concealed from him and his guardian. V. That the said A. J. French retained the sum of $1,800 in her possession up to the time of her death, and at her death her estate became liable to pay the same to this defendant, with interest thereon from the time of the death of the said Jesse French, sr., deceased, and that no part thereof has ever been paid. VI. This defendant here sets up the sum of $1,800 and interest as a counter-claim, and demands judgment therefor in this action. Wherefore, this defendant demands judgment against the plaintiffs for the sum of $1,800, together with interest, from the day of , A. D., 1878, together with the costs of this action.”
Plaintiffs replied to the counter-claim, denying all the allegations of fact set up in the answer, and also interposing the plea of the statute of limitations thereto. At the hearing before the Pión. D. A. Townsend, the plaintiffs demurred to the counter-claim of defendants; Judge Townsend sustained such demurrer, holding that, by the allegations of the answer, the conduct of Mrs. A. J. French was set up as a tort, and inasmuch as the plaintiff had sued upon a contract, such alleged counter-claim could not be set up. Furthermore, the Circuit Judge held'that if, as the defendants contended before him, the contract of Mrs. A. J. French touching the $1,800 could be construed as an implied contract whereby she, Mrs. A. J. French, became obligated to pay the said $1,800 to the defendant, yet it was barred by the statute of limitations.
From this decretal order of Judge Townsend the defendant now appeals upon the grounds, substantially, as follows: 1. Because the Circuit Judge erred in holding the allegations setting up the counter-claim to be a tort, and, therefore, denied the application of such alleged tort as a counter-claim to [496]*496the contract sued on by the plaintiff; whereas, he should have held the same an implied contract on the part of Mrs. French, the intestate, to pay such money to this defendant. 2. Because the Circuit Judge erred in holding that such counterclaim was not pleaded as an implied contract, but as a tort; whereas, the answer did allege all the facts of a counterclaim under an implied contract, and hence it was sufficient under the Code. 3. Because the Circuit Judge erred in holding that, even if said counter-claim was properly pleaded as arising upon an implied contract, yet it was barred by the statute of limitations; whereas, the fraud in concealing the .$1,800 was alleged not to have been discovered until within the six years immediately preceding the date of action brought.
It seems that the Circuit Judge has applied too harsh a construction to the allegations of fact set up in the defendant’s answer relating to the $1,800 retained by plaintiff’s intestate — Mrs. A. J. French — from the hands of the executors of her. husband’s will, and which said $1,800, under the will, belonged to the defendant. Under the second subdivision of section 171 of our Code of Procedure, the defendant was allowed to plead his said counter-claim, “in an action arising on contract, any other cause of action also arising on contract, and existing at the commencement of the action.” It seems to us that the decision in Bryce v. Parker, 11 S. C., 337, very clearly points out that a litigant may elect between an action on tort and one on contract. The Code requires no specific words claiming that such an election has been made. It is enough if it appears to be made in effect in the pleading. It has too long been held, that “whenever one person has in his hands the money of another which he ought to pay over, he is liable in this action (old action of assumpsit), although he has never seen or heard of the person who has the right. When, this fact is proved, “that he has the money, if he cannot show that he has a legal or equitable ground for retaining it, the law creates the privity and the promise.” It has been held that under the old pleadings [497]*497(that is, such as obtained prior to the Code), when the contract is open and something remains to be done besides the payment of the money, then the action must be general. This doctrine was held in Marvin v. McRae, survivor, Rice’s Reports, 176. By the allegations, nothing was to be done in the case at bar but for plaintiff’s intestate to pay the money in question to either the executors of her husband’s will, or to the defendant as legatee under said will. Bours & Bascombe v. Watson, 1 Mill., 393; Sebring, adm., v. Keith, 2 Hill, 340; Porgartee & Sullivan v. State Bank, 2 Rich., 578; Peay v. Aiken, 1 Strob., 103; Buchanan v. Buchanan, 4 Strob., 68; Drake v. Whaley, 35 S. C., 187, which cites a number of our cases in support of the form of action being assumpsit for money had and received, under the pleadings before the Code — -held that the adoption of the Code does not destroy the rights of action. If it is true that Mrs.
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The opinion of the Court was delivered by
Mr. Justice Pore.
Paragraphs 1, 2, 3, 4 of the complaint allege that Mrs. A. J. French died intestate in April, 1898; that the plaintiffs were appointed her administrators in May, 1898; that defendant is a resident of Greenville County, S. C.; and that the defendant, on the 20th February, 1890, made his promissory note, whereby he obligated himself to pay to A. J. French $600, with eight per cent, interest, on or before 1st October, 1890, but that he had only paid $100 on said note on the 19th day of November, 1895. All of which allegations were admitted in the answer except the payment of the $100, on 19th November, 1895. This* last was denied, and also all other allegations, in the fifth paragraph of complaint. The answer also set up the plea of the statute of limitations. “IV. The defendant, further answering, alleges that about twenty years ago, Jesse French, sr., departed this life, leaving of full force and effect his last will and testament, wherein he willed and devised to this defendant, who is his grand-son, and who was then a minor, all his property, including money on hand at the time of his death, and also all his real estate; that the said A. J. French, deceased, plaintiff’s intestate, was the widow of the said Jesse French, sr., deceased, i't became her duty to turn over to his executors, for the defendant, all of his money; that she did not do so, but retained in her possession $1,800 of said money, and converted the same to her own use; that the executors of the estate of the said Jesse French, sr., fully administered his estate and were discharged, and never knew that [495]*495the said A. J. French 'had converted said money to her own use; and that this defendant upon arriving at the age of 21 years received all the estate of the said Jesse French, sr., deceased, except the $1,800, but then did not-know and never ascertained until after the death of the said A. J. French that she had converted said money to her own use, as she kept the act concealed from him and his guardian. V. That the said A. J. French retained the sum of $1,800 in her possession up to the time of her death, and at her death her estate became liable to pay the same to this defendant, with interest thereon from the time of the death of the said Jesse French, sr., deceased, and that no part thereof has ever been paid. VI. This defendant here sets up the sum of $1,800 and interest as a counter-claim, and demands judgment therefor in this action. Wherefore, this defendant demands judgment against the plaintiffs for the sum of $1,800, together with interest, from the day of , A. D., 1878, together with the costs of this action.”
Plaintiffs replied to the counter-claim, denying all the allegations of fact set up in the answer, and also interposing the plea of the statute of limitations thereto. At the hearing before the Pión. D. A. Townsend, the plaintiffs demurred to the counter-claim of defendants; Judge Townsend sustained such demurrer, holding that, by the allegations of the answer, the conduct of Mrs. A. J. French was set up as a tort, and inasmuch as the plaintiff had sued upon a contract, such alleged counter-claim could not be set up. Furthermore, the Circuit Judge held'that if, as the defendants contended before him, the contract of Mrs. A. J. French touching the $1,800 could be construed as an implied contract whereby she, Mrs. A. J. French, became obligated to pay the said $1,800 to the defendant, yet it was barred by the statute of limitations.
From this decretal order of Judge Townsend the defendant now appeals upon the grounds, substantially, as follows: 1. Because the Circuit Judge erred in holding the allegations setting up the counter-claim to be a tort, and, therefore, denied the application of such alleged tort as a counter-claim to [496]*496the contract sued on by the plaintiff; whereas, he should have held the same an implied contract on the part of Mrs. French, the intestate, to pay such money to this defendant. 2. Because the Circuit Judge erred in holding that such counterclaim was not pleaded as an implied contract, but as a tort; whereas, the answer did allege all the facts of a counterclaim under an implied contract, and hence it was sufficient under the Code. 3. Because the Circuit Judge erred in holding that, even if said counter-claim was properly pleaded as arising upon an implied contract, yet it was barred by the statute of limitations; whereas, the fraud in concealing the .$1,800 was alleged not to have been discovered until within the six years immediately preceding the date of action brought.
It seems that the Circuit Judge has applied too harsh a construction to the allegations of fact set up in the defendant’s answer relating to the $1,800 retained by plaintiff’s intestate — Mrs. A. J. French — from the hands of the executors of her. husband’s will, and which said $1,800, under the will, belonged to the defendant. Under the second subdivision of section 171 of our Code of Procedure, the defendant was allowed to plead his said counter-claim, “in an action arising on contract, any other cause of action also arising on contract, and existing at the commencement of the action.” It seems to us that the decision in Bryce v. Parker, 11 S. C., 337, very clearly points out that a litigant may elect between an action on tort and one on contract. The Code requires no specific words claiming that such an election has been made. It is enough if it appears to be made in effect in the pleading. It has too long been held, that “whenever one person has in his hands the money of another which he ought to pay over, he is liable in this action (old action of assumpsit), although he has never seen or heard of the person who has the right. When, this fact is proved, “that he has the money, if he cannot show that he has a legal or equitable ground for retaining it, the law creates the privity and the promise.” It has been held that under the old pleadings [497]*497(that is, such as obtained prior to the Code), when the contract is open and something remains to be done besides the payment of the money, then the action must be general. This doctrine was held in Marvin v. McRae, survivor, Rice’s Reports, 176. By the allegations, nothing was to be done in the case at bar but for plaintiff’s intestate to pay the money in question to either the executors of her husband’s will, or to the defendant as legatee under said will. Bours & Bascombe v. Watson, 1 Mill., 393; Sebring, adm., v. Keith, 2 Hill, 340; Porgartee & Sullivan v. State Bank, 2 Rich., 578; Peay v. Aiken, 1 Strob., 103; Buchanan v. Buchanan, 4 Strob., 68; Drake v. Whaley, 35 S. C., 187, which cites a number of our cases in support of the form of action being assumpsit for money had and received, under the pleadings before the Code — -held that the adoption of the Code does not destroy the rights of action. If it is true that Mrs. French died with the money of the defendant to 'the extent of $1,800 in her hands, and also holding a promissory note for $600 given to her by the defendant, how can it be said that the administrators of her estate can force the defendant to pay the $600 — but that the defendant has no cause of action except in tort against such administrators for the $1,800? But it is said, granting that the counter-claim set up by defendant did arise from a contract implied by law, still the statute of limitations was a bar thereto, first, because it was not brought within the six years from the discovery of the fraud, required by section 112, subdivision 6, of the Code, to wit: because it was one of the cases solely cognizable in a Court of Equity. In what other tribunal than that of chancery was the defendant’s action cognizable? Certainly not in law; for after the executors of the will of Jesse French, deceased, had been discharged from the office as such executors, how could the defendants, on the law side of the Court, get any relief against the plaintiff? We do not mean to imply that fraud is not cognizable either in law courts or in Courts of Chancery, but we do mean to say that, under the facts alleged by the defendant in his counter-claim, a Court [498]*498of Chancery was solely invested with power to afford relief. This being so, section 12 and subdivision 6 thereof apply; and as it is alleged this fraud was not discovered until within the six years immediately preceding this counter-claim, the statute of limitations is not a bar to this countér-claim.
The Circuit Judge having erred in sustaining the demurrer to the alleged counter-claim, the action remains for trial upon its merits. I think, therefore, our judgment should be: “It is the judgment of this Court that the order of the Circuit Court appealed from be reversed, and that the action be remitted to the Circuit Court for a trial thereof upon its merits.” But I am overruled by the majority of the Court.