this chapter1 fraudulently conceals the cause of such action. from the knowledge of the person entitled to bring the same, the action may be commenced at any time within six years after the person so entitled discovers that he has such cause of action.' 2 5 Under such a statute it is not enough, even in a case where fraud is the cause of action, to show mere non-discovery of the fraud, for non constat that the plaintiff may not have been put upon inquiry which would have led readily to discovery; in such a case as that it is not likely that the bar of the statute would be opened anywhere. There must at least have been a concealment of the fraud, or of facts the knowledge of which would in the case of a diligent man lead to discovery; no law requires the wrong-doer to disclose his fraud, or to give aid in finding it out. This however should be qualified in regard to one class of cases. It is unnecessary that concealment of a fraud should appear in order to prevent the statute from running until discovery if there be a relation of trust and confidence between the parties, such e. g. as exists between principal and agent; it would then be the duty of the party complained of to make disclosure. Nor will the fact that the plaintiff had the means of 1 All the ordinary personal actions. 2 Pub. Sts. c. 197, § 14. 8 Farnam v. Brooks, 9 Pick. 212; Nudd v. Hamblin, 8 Allen, 130; Atlantic Bank v. Harris, 118 Mass. 153; Findley v. Stewart, 46 Iowa, 655; Boomer v. French, 40 Iowa, 601. 4 See Manufacturers' Bank v. Perry, 144 Mass. 313, a good example. See further infra, p. 28. 5 Farnam v. Brooks, 9 Pick. 212, 245; Peck v. Bullard, 2 Humph. 41; Boone v. French, 40 Iowa, 601; Humphreys v. Mattoon, 43 Iowa, 546; Findley v. Stewart, 46 Iowa, 655; Calhoun v. Burton, 64 Tex. 510; Connoly v. Hammond, 58 Tex. 11; Hudson v. Wheeler, 34 Tex. 356; Munson v. Hallowell, 26 Tex. 477; Callis v. Waddy, 2 Munf. 511; Reed v. Minell, 30 Ala. 61. See Meader v. Norton, 11 Wall. 443. 6 Wickersham v. Lee, 83 Penn. St. 416; Atlantic Bank v. Harris, 118 Mass. 147. Investing the principal's money instead of remitting it as directed is not a fraudulent concealment. Fleming v. Culbert, 46 Penn. St. 498. See a further case of principal and agent, with actual fraud, in Perry v. Wade, 31 Kans. 428. 7 Atlantic Bank v. Harris, 118 Mass. 147; Wickersham v. Lee, 83 Penn. St. 416; Wilson v. Ivy, 32 Miss. 233; knowledge in this (if in any) case be material.1 Such, it is obvious, may be a legal case under the statute, and hence not within the special rules of equity; and the case first cited is an example, the action being in contract for money had and received. Suppose however that the fraud by which the plaintiff's cause of action is concealed is no other than that which constitutes the cause of action itself, and that there is thus, but not otherwise, a concealment of fraud of which the plaintiff had neither knowledge nor notice, so that he was not put upon inquiry; is this enough to open the bar of the statute? Again the answer must be, that will depend largely upon the language of the particular act. In the case of a statute such as that above quoted it has been held that such is not 'fraudulent concealment'; something, such as affirmative misrepresentation, being necessary beyond the mere creation of the cause of action to remove the bar of the statute,2 to which view indeed countenance appears to be given by the use of the word 'fraudulent.' Thus in a recent case the plaintiff sued at law for damages on account of fraudulent misrepresenta tions of the quality of land. The defendants pleaded the statute, and the plaintiff replied that the cause of action relied upon was the fraud and fraudulent misrepresentation of the defendants, and the injury thereby caused to the plaintiff; and the plaintiff alleged that he did not and could not by reasonable diligence have discovered said fraud, or that the representation was untrue and fraudulent, until within six years before action.' To this there was a demurrer, and the demurrer was sustained. The court said that to hold the Buckner v. Calcote, 28 Miss. 432. See Nudd v. Hamblin, 8 Allen, 130. 1 Atlantic Bank v. Harris, 118 Mass. 147, 153. The case of Farnam v. Brooks, 9 Pick. 212, 244, went too far in saying that having means of knowledge was fatal; means of knowledge is nothing in the face of fraud. See infra, p. 30. 2 Sankey v. McElevey, 104 Penn. St. 265; Manufacturers' Bank v. Perry, 144 Mass. 313; Walker v. Soule, 138 Mass. 570; Farnam v. Brooks, 9 Pick. 212, 245; Reed v. Minell, 30 Ala. 61; Barber v. Houston, 14 L. R. Ir. 273. See also Printup v. Alexander, 69 Ga. 553. 3 Barber v. Houston, supra. reply good would be to hold as matter of law that every fraudulent representation involves a continuous fraudulent and intentional concealment of the fraud until the injured party might or ought to have discovered it. It seems difficult to answer this reasoning; for though the commission of a fraud consisting in deception implies concealment, and perhaps fraudulent concealment (though that is another thing), still it is not certain, as matter of law, that the concealment has been continuous until the statute has run, merely from the fact of the cause of action. However, a contrary rule prevails in several states.1 3 But it should be noticed in any event that it is the cause of action that must be concealed; it does not satisfy the exception in the statute to show the concealment of some collateral matter.2 'What is the cause of action in the present case?' said a learned judge. Clearly it is the defendant's breach of the promise to pay the debt which the plaintiff alleges that the defendant owes him. . . . And this cause of action the defendant has never concealed. But he now sets up a discharge, under the insolvent law, from his liability to pay damages for this breach of promise. In answer to this defence the plaintiff alleges that the defendant committed a fraud in obtaining his discharge, and concealed that fraud till within six years next before this action was brought. And we are asked to decide that the concealment by the defendant of matter which the plaintiff must prove, in order to rebut and control the defendant's defence, is a concealment of the plaintiff's cause of action. This we cannot do.' It has been held that the fraudulent concealment of a cause of action will not arrest the operation of the statute when the 1 Wear v. Skinner, 46 Md. 257; Quimby v. Blackey, 63 N. H. 77; Way v. Cutting, 20 N. H. 187; Longworth v. Hunt, 11 Ohio St. 194. See Bailey v. Glover, 21 Wall. 342; Nudd v. Hamblin, 8 Allen, 130, 132. But the language of the statute should always be 3 Metcalf, J. in Rice v. Burt, supra. plaintiff had the means of learning the facts.1 But the most of the cases cited appear to have followed the leading of the first one implicitly; and that case was decided at a time when there was still much confusion in cases of fraud in regard to 'means of knowledge.' It is now firmly held everywhere that the mere fact that one has the means of knowledge, as e. g. in the registry, of the facts in regard to a fraudulent representation will not prevent one from maintaining an action for deceit; it matters not that the plaintiff was negligent if the defendant's misrepresentation, being material, was fraudulent.2 The misrepresentation put the plaintiff off his guard; and he might safely act upon it without inquiry. There is no sound distinction between such a case and the means of knowledge of a fraudulent concealment of a cause of action, where any active measures sufficient to mislead are employed.3 Cases therefore which hold that falsehood cannot constitute fraudulent concealment,' in the presence of means of knowledge, stand, if at all, only upon authority. Falsehood 1 Farnam v. Brooks, 9 Pick. 212, 244 (referred to in Nudd v. Hamblin, 8 Allen, 130, 131, Wells v. Child, 12 Allen, 333, 335, and Atlantic Bank v. Harris, 118 Mass. 147, 153); Cole v. McGlathry, 9 Greenl. 131; McKown v. Whitmore, 31 Maine, 448; Rouse v. Southard, 39 Maine, 404; Hudson v. Wheeler, 34 Tex. 356. 2 Central Ry. Co. v. Kisch, L. R. 2 H. L. 99, 120; Rawlins v. Wickham, 1 De G. & J. 304; Redgrave v. Hurd, 20 Ch. D. 1, 13, Jessel, M. R.; Sankey v. Alexander, Ir. R. 9 Eq. 259, 316; Reynell v. Sprye, 1 De G. M. & G. 668, 709; Stanley v. McGauran, 11 L. R. Ir. 314; Phelps v. White, 7 L. R. Ir. 160; David v. Park, 103 Mass. 501; Mead v. Bunn, 32 N. Y. 275, 280; Starkweather v. Benjamin, 32 Mich. 305; Webster v. Bailey, 31 Mich. 36; Jones v. Hathaway, 77 Ind. 14; Keller v. Equitable Ins. Co., 28 Ind. 170; Matlock v. Todd, 19 Ind. 130; Parham v. Randolph, 4 How. (Miss.) 435; Kiefer v. Rogers, 19 Minn. 32; Caldwell v. Henry, 76 Mo. 254; Union Bank v. Hunt, ib. 439; Holland v. Anderson, 38 Mo. 55; McClellan v. Scott, 24 Wis. 81, 87; Bank of Woodlan v. Hiatt, 58 Cal. 234. See Marston v. Simpson, 54 Cal. 189. But see Cagney v. Cuson, 77 Ind. 494, and comp. with that case the other Indiana cases supra, and Campbell v. Franklin, 65 Ind. 591. See also Messer v. Smyth, 59 N. H. 41, and Leavitt v. Fletcher, 60 N. H. 182, the language of which may be doubted. 8 No distinction was suggested in the well considered case of Sankey v. Alexander, Ir. R. 9 Eq. 259, 316, where Partridge v. Usborne, 5 Russ. 195, 232, a case of lapse of time, was approved. Cole v. McGlathry, 9 Greenl. 131 ; in itself is not indeed fraud, but falsehood with a view to deception, and resulting in deception, as in the cases under criticism, is typical fraud,1 successfully carried out. The true rule upon the subject, unless statute has otherwise fixed its terms, is that, in the face of misleading word or act in regard to the existence of the cause of action, the plaintiff will not be defeated either because of means of knowledge generally, or of knowledge of facts which would lead a diligent man to inquire, and, on inquiring, lead him to a knowledge of the cause of action. That is consistent with the rule that the cause of action accrues from the time when discovery of it was made, or might have been made by the exercise of reasonable diligence.2 Indeed it is laid down in a case of high authority, relating to lapse of time in equity, that where one party to a contract makes a positive representation, it is not laches in the other not to proceed immediately to verify that representation; laches cannot be imputed until he has reason to doubt its truth.3 And if the defendant has misled him since the cause of action arose, surely laches cannot be imputed. Thus far of the Statute of Limitations in regard to the common personal actions. Suits pertaining to the title to or interest in lands fall within other statutes. The English statute 4 provides that in every case of a concealed fraud the right of any person to bring a suit in equity for the recovery of any land or rent of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which such fraud shall or with reasonable diligence might have been first known or discovered,' with certain unimportant qualifications. In a recent case,5 to give a single illustration of the effect McKown v. Whitmore, 31 Maine, 448; 1 See the definition of fraud ante, p. 5. 2 Rosenthal v. Walker, 111 U. S. 185; O'Dell v. Burnham, 61 Wis. 552; Alston v. Richardson, 51 Tex. 1. 3 Partridge v. Usborne, 5 Russ. 195, 232, Lord Lyndhurst. 4 3 & 4 Wm. 4, c. 27, § 26. 6 Vane v. Vane, L. R. 8 Ch. 383. |