CHAPTER I.

STATUTES OF LIMITATION, AND LAPSE OF TIME.

§ 1. STATUTES OF LIMITATION.

The Statute of Limitations of James the first,1 parent of all the like statutes in this country, provides in effect that the common personal actions ex delicto and ex contractu'shall be commenced and sued within' a certain time after the cause of such actions or suit, and not after'; 2 into which American statutes have introduced, for greater certainty, the word accrues,' making the latter part quoted read after the cause of action accrues, and not afterwards.' 3

When does a cause of action for fraud accrue' within this provision, i. e. excluding all qualifying or excepting clauses of the American statutes, for there are none to the purpose in the parent act? The profession in this country has become so accustomed to say that the cause of action for fraud arises only upon discovery of the wrong or upon knowledge of facts pointing to it, that it is not improbable that the question stated would be answered in that way by most American lawyers. But the statute, it will be seen, is in terms straightlaced; and English courts of law have given it its natural interpretation. The result is that the cause of action accrues, and the statute begins to run, from the time when the fraud was committed, not from the time when it was or should have been discovered. More than that, it was settled law in England, under the system of courts of law and courts of equity,

1 21 Jac. 1, c. 16 (1623).

2 Ib. § 3.

3 See e. g. Mass. Pub. Sts. c. 191, § 1.

that in legal actions, to a plea of the statute, a reply that the cause of action was fraudulently concealed by the defendant would not save a suit brought after the time limited;1 and the same rule has been laid down in this country.2

It is not quite clear upon authority whether the same rule prevailed in England in equity in a case within the statute; though in principle it should be so. And the reason is, that the statute does not except a case which might happen to be brought in equity; and that equity professes, as it ought to profess, to act in obedience to the statute in cases where it would govern at law. Equity might, as we shall see, virtually establish a limitation to equity suits, if no statute applied; further than this to go, and to fix an exception to statute where the statute makes none, would be to legislate, nay more, to override legislation.

And the weight of English authority appears until recently to have been in accordance with this reasoning; but a late decision of the Court of Appeal,5 by two judges against one, has apparently turned the scale of authority. The case referred to was a legal action, an action for damages for fraud; but a reply of concealment of the cause of action was there allowed. The court however did not profess to overrule, on

1 Hunter v. Gibbons, 1 Hurl. & N. 459; Imperial Gaslight Co. v. London Gaslight Co., 10 Ex. 39; Gibbs v. Guild, 9 Q. B. D. 59, 63, C. A.

2 Franklin's Case, 8 Gill, 331; Taylor v. Robinson, 69 Ala. 269. See also Wear v. Skinner, 46 Md. 257. Contra First Mass. Turnp. Corp. v. Field, 3 Mass. 201, infra, p. 26, note.

3 Lockey v. Lockey, Prec. Ch. 518; Knox v. Gye, L. R. 5 H. L. 656, 674, Lord Westbury. The statute therefore operates with us ex vigore suo, in equity as well as at law, and not by the discretion or courtesy of the courts.' Parker, C. J. in Farnam v. Brooks, 9 Pick. 212, 243; Dodge v. Essex Ins. Co., 12 Gray,

65, 71. Special reasons were given in the first case cited for this rule in Massachusetts; but the principle is true everywhere. See Badger v. Badger, 2 Wall. 87, 94. It will be seen that the learned judge in Dodge v. Essex Ins. Co., supra, was clearly wrong in saying that 'in England courts of equity do not hold themselves barred [sic; bound?] by the provisions of the Statute of Limi tations.'

4 See the cases last cited.

5 Gibbs v. Guild, 9 Q. B. D. 59, affirming 8 Q. B. D. 296.

Under the Judicature Act all the courts of England have equity powers. 36 & 37 Vict. c. 66 (1873).

the contrary the judges admitted the authority of, the cases at law; but the reply was held good, Lord Coleridge in an opinion of great ability taking the ground that though a party may have a right by law, as e. g. under the Statute of Limitations, it may be unjust in a particular case (like the present) to permit him to exercise it.1 This case then seems to establish the rule, on authority, that in equity a reply of fraudulent concealment of the cause of action, though in a legal case, is good. Whether it means that before the Judicature Act (1873) an injunction might have been granted for such reason against a defendant's pleading the statute in a suit at law does not appear, though that would seem to follow. However it is extremely doubtful whether that could have been done. In the cases at law 2 the reply was of course in the nature of an equitable pleading (allowed by statute), but that made no difference, as was admitted in the recent case under consideration. And the opinion of most of the judges in one of the cases at law, afterwards fortified by the opinion of Lord Westbury 5 in the House of Lords based upon that of Lord Macclesfield, was that the same rule would prevail in the Court of Chancery; where that court had appeared to take another view, it was pointed out that the case was really an equity case on the merits."

3

The conclusion perhaps is that the Court of Appeal has gone somewhat beyond the previous authorities, and in the

1 Lord Coleridge, at p. 65, 9 Q. tiff had sufficient confidence in this adB. D. vice to try it.

2 Hunter v. Gibbons, 1 Hurl. & N. 459; Imperial Gaslight Co. v. London Gaslight Co., 10 Ex. 39.

Q. B. D. 59, 69.

674.

·

5 Knox v. Gye, L. R. 5 H. L. 656,

6 Lockey v. Lockey, Prec. Ch. 518.

8 Brett, L. J. in Gibbs v. Guild, 9 Where a court of equity assumes a concurrent jurisdiction with courts of law, no account will be given after the legal limit of six years if the statute be pleaded.' Knox v. Gye, supra.

4 Hunter v. Gibbons, supra. But Pollock, C. B. said: "The plaintiff must go into equity and obtain redress, which that court ought to give him if his contention here is well found.' There is nothing however to show that the plain

7 Blair v. Bromley, 5 Hare, 542; Booth v. Warrington, 4 Bro. P. C. 163 (Toml. ed.).

interest of substantial justice done by way of interpretation what the legislature ought to have done long before, a thing for which more than one precedent might be found. Indeed it would be necessary to examine the decisions and statutes of forty independent jurisdictions in the United States to see how often what was done by the English Court of Appeal had already been done and surpassed in the United States.1

What the precise rule in regard to the case of fraudulent concealment, or of mere concealment (if that is anywhere enough 2), of the cause of action may be must turn upon the particular statute, where the case is governed by statute. The Massachusetts act, which has been widely adopted, provides that if a person liable to any of the actions mentioned in

1 See e. g. Wear v. Skinner, 46 Md. 257; Phelan v. Clark, 19 Conn. 421, a majority decision in equity. The same rule had been established in Massachusetts, even at law, long before any statute gave authority for it. First Mass. Turnp. Corp. v. Field, 3 Mass. 201 (1807), Parsons, C. J. That early case will probably be found to have been the leader of a considerable train of doubtful decisions. Homer v. Fish, 1 Pick. 435; Welles v. Fish, 3 Pick. 74, and cases cited in Perkins's ed.; Sherwood v. Sutton, 5 Mason, 143. See post, p. 32. But it is significant that, notwithstanding the fact that Chief Justice Parsons, in Welles v. Fish (1825), pronounced it well settled that a plaintiff could at law reply fraudulent concealment, the legislature a few years afterwards considered it expedient to enact the statute quoted in the text, pp. 26, 27. and so place the rule beyond question. Rev. Sts. c. 120, § 12 (1836). A correct decision upon this subject was lately rendered in Alabama. Taylor v. Robinson, 69 Ala. 269.

2 See e. g. Quimby v. Blackey, 63 N. H. 77; Bailey v. Glover, 21 Wall.

342; infra, p. 28. See also Printup v. Alexander, 69 Ga. 553; Findley v. Stewart, 46 Iowa, 655; Boomer v. French, 40 Iowa, 601; Harman v. Looker, 73 Mo. 622. The last case involved the construction of the following language: If any person by absconding, or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.' Rev. Sts. Mo. § 3244. The court held that it made no differ ence under this statute how openly the debtor may have resided in any new home he may have acquired, or how long he may have continued so to reside.' Nor was it material whether the debtor was a resident of Missouri and had sought a new home in some other or distant locality where he lives openly as to his new neighbors, or whether he was a non-resident who has found a home in Missouri, where he thus lives unconcealed as to other citizens of that vicinity.' See also Butler v. Lawson, 72 Mo. 227, and other cases cited.