Wear v. Skinner

Robinson, J., delivered the opinion of the Court. This is an action for deceit brought by the appellant against the appellee, to recover damages for an alleged fraud, by which the former was induced to assign to the latter, his interest in the firm of Skinner, Neale & Co., of which they had both been members The defendant pleaded non cul, and the Statute of Limitations.. Issue was joined on the plea of not guilty, and to the plea of the Statute, the plaintiff replied: ²⁶⁴ “That he was kept in ignorance by the fraud of the defendant for a long time of the cause of action, which he bad against the defendant, and that he brought his action within three years from the time at which he could, with usual and ordinary diligence, have discovered the fraud.” Issue was joined on the replication, and the Court below rejected the several prayers offered by the plaintiff, and instructed the jury that he had offered no evidence legally sufficient to maintain the replication, and their verdict must be for the defendant. We understood the appellee to contend, that although the plaintiff was injured by fraud practiced on the part of the defendant, and such fraud was not discovered by him within three years before the institution of this suit, yet in order to support the replication, it was necessary to prove some other distinct fraud on the part of the defendant, whereby the plaintiff was kept in ignorance of his cause of action; and that the mere concealment of the original fraud from the Plaintiff will not he sufficient.

The replication was filed under the Act of 1868, cb. 351, which provides that— “In all actions to be hereafter brought where a party has a cause of action, of which he has been kept in ignorance by the fraud of the adverse party, the right to bring the suit shall be deemed to have first accrued, at the time at which such fraud shall or with usual and ordinary diligence might have been known or discovered.” Here' then is a remedial Act, passed for the purpose of enabling parties in actions at law, to set up the fraud of the defendant, in order to avoid a plea of limitations, and if there be any difficulty in its construction, an examination of the law on the subject, as recognized by Courts of equity and Courts of law at the time the Act was passed, may aid us in determining what the Legislature meant. And to this end, we deem it unnecessary to review the many cases in which the subject has been considered by ²⁶⁵ Courts of equity, for we think one may safely say, it is well settled by such Courts, that where a party has been injured by the fraud of another, and such fraud is concealed, or is of such character as to conceal itself, whereby the injured party remains in ignorance of it without any fault or want of diligence on his part, the bar of the statute does not begin to run, until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party. Booth vs. Lord Warrington, 4 Brown's Parlimentary Cases, 163; South Sea Company vs. Wymondsell, 3 Peere Williams, 143; Hovenden vs. Lord Annesley, 2 Schoales & Lefroy, 634; Sherwood vs. Sutton, 5 Mason, 143 ; 2 Swanst., 62; Petre vs. Petre, 1 Drewry, 393; Langley vs. Fisher, 9 Beav., 90; Lewis vs. Thomas, 3 Hare, 26; Bailey vs. Glover, 21 Wallace, U. S. Rep., 346. And this is the rule too, when such Courts are dealing with legal demands, in regard to which they obey strictly the very terms of the Statute of Limitations.

Whether a party can rely upon the fraud of the defendant, in an action at law, to avoid the operation of the statute, is a question in regard to which there is some conflict of decision in this country. Some Courts hold, that the equitable principles upon which fraud is allowed in equity in such cases, are not applicable in actions at law. Others, on the other hand, maintain that the Statute of Limitations was intended to suppress, and not to be used as a shield for fraud, and that whenever a party is injured by the fraud of another, and such fraud is concealed from him, the statute does not begin to run until he has, or might with ordinary diligence have discovered the fraud. Such cages, they hold are not within the meaning and operation of the statute, and the injured party may rely upon fraud in a Court of law as well as in a Court of equity.

Turnpike Co. vs. Field, 3 Mass., 201 ; Welles vs. ²⁶⁶ Fish, 3 Pick., 74 ; Jones vs. Conoway, 4 Yeates, 109 ; Keesh vs. Barr, 1 Watts, 110 ; Pennock vs. Freeman, Id., 401; Mitchell vs. Thompson, 1 McLean, 96 ; Carr vs. Hilton, 1 Curtis, 390; Bowman vs. Sanborn, 18 New Hamp., 208; Cole vs. McGlarthy, 9 Greenleaf, 131; Morton vs. Chandler, 8 Greenleaf, 9; McDowell vs. Young, 12 Serg. & Rawle, 128 ; Keesh vs. Barr, 1 Watts, 110 ; Harrisburgh Bank vs. Foster, 8 Watts, 12 . It has been questioned whether the English cases go to the extent of deciding, that a party may reply fraud to a plea of limitations in an action at law, and although the question was not directly raised by the pleadings in Bree vs. Holbach, Doug., 655; Clarke vs. Hougham, 3 Dowing & Ryland, 322, and Granger vs. Granger, 5 Barnwall & Creswell, 149, yet it is clear from what was said by the several Judges in these cases, that a replication of fraud would have been sufficient. Lord Mansfield said: “ There may be cases too, which fraud will take out of the Statute of Limitations.” Doug., 654. Baxley, J., “The question how far fraud may prevent the operation of the Statute of Limitations, does not properly arise in this case.

In order to take advantage of fraud, there should have been a special replication.” Best, J., “To the next question, it has been answered that fraud prevents the operation of the Statute of Limitations. It is not necessary to decide that now, but I think that I would have done' so, had the replication raised the point.!’ Clarke vs. Hougham, 2 B. & C., 149. In this State, it was held in the case of the Negro Franklin, 8 Gill, 331 ; that fraud could not be replied to a plea of limitations in an action at lavi, and it is obvious we think, that the Act of 1868, was passed for the purpose of enabling, parties to set up the fraud of the defendant in a Court of law as well as in a Court of equity. Unless then the