pelled the defendant, who meantime had obtained a deed, to execute a conveyance to the plaintiff. If no facts are involved but the simple one of the length of time which has elapsed since the cause of action accrued, the question of reasonable time, within a statute in regard to the discovery of the cause, is one of law. But where disputed facts, involving questions of excuse, of the time of discovering the fraud, or the like, are to be passed upon, the question is one of mixed law and fact, to be submitted in a jury case under proper instructions.1 § 2. LAPSE OF TIME. The term 'lapse of time,' as now used, is a technical term of courts of equity, invented by such courts as a counterpart to the term 'statute of limitations.' The term is indeed sometimes used in an untechnical sense, with regard to time under the statute, but here we refer to it in its peculiar sense. And heretofore we have been speaking generally of the fraudulent concealment of a cause of action, whatever that cause, whether ex delicto or ex contractu; now however we come to a class of cases in which no distinction arises, so far as the doctrine of lapse of time is concerned, between fraudulent concealment of the cause of action as commonly understood and fraud alone as the cause of action. In either case the doctrine applies. That is, where no statute governs, equity, which created the doctrine of lapse of time, may control its application; it may declare and does declare that that doctrine shall not apply to fraud, so long as the injured party remains ignorant thereof without fault of his own. But this is true only of 1 Gatling v. Newell, 9 Ind. 572; Kelsey v. Ross, 6 Blackf. 536; Holbrook v. Burt, 22 Pick. 546; Kingsley v. Wallis, 14 Maine, 57; Manahan v. Noyes, 52 N. H. 232. 2 See ante, p. 34. actual, not of constructive fraud. Within what time a claim for relief against constructive fraud will be barred depends upon the special circumstances of the case. The claim for relief in equity may be and often is denied within the period fixed by the Statute of Limitations for ordinary cases. But where the facts of the case are clearly established, and the controversy is not embarrassed by claims of third persons or conflicting interests, mere delay to sue is not fatal.3 Speaking now of actual fraud as a cause of action, it has already been remarked that in cases of concurrent jurisdiction with courts of law courts of equity consider themselves bound by the Statutes of Limitation which govern courts of law, and this in obedience to the statutes rather than by analogy to them. In certain other cases in which the statute does not govern them they act upon the analogy of the like limitation at law. Thus in a recent case the legal limit of one year for filing a bill of review was adopted in equity by analogy as the period within which a bill to vacate a decree for fraud should be brought; and the same limit was in another case held applicable to a petition for a new trial on account of the discovery of new evidence. But the defence founded on lapse of time and the staleness of the claim, arises where there are no acts of limitation to govern or to furnish analogy. In such cases equity, acting upon the principle of discouraging antiquated demands, refuses to interfere where there have been great laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights. 1 Farnam v. Brooks, 9 Pick. 212; Smallcombe's Case, L. R. Eq. 769; s. c. L. R. 3 H. L. 249. 2 Obert v. Obert, 1 Beasl. 423; Doughty v. Doughty, 3 Halst. Ch. 649; Michoud v. Girod, 4 How. 503. 8 Obert v. Obert, supra. 4 Evans v. Bacon, 99 Mass. 213. 5 Plymouth v. Russell Mills, 7 Allen, 438, 445. 6 Badger v. Badger, 2 Wall. 87, 94; Plymouth v. Russell Mills, 7 Allen, 438; Evans v. Bacon, 99 Mass. 213; Quin v. Allen, 47 Mich. 74. Cases of rescission have therefore as such nothing to do with this doctrine of lapse of time.. The books afford many illustrations of this rule of law. The failure of a cestui que trust to take steps to set aside a conveyance made by him to the trustee of his trust estate for three years and eight months is prima facie unreasonable, where the trustee has not been guilty of any positive act of fraud or concealment.1 So too a delay to sue for fraud for six years and a half after knowledge, the principal parties to the fraud having died meantime, is unreasonable. And in an English case a bill to set aside a purchase made by a trustee for himself and his children was dismissed after a lapse of eighteen years, upon the length of time only.3 Again where an infant was fraudulently induced to execute a deed of land to another, believing that she was merely executing an instrument authorizing the person named therein to sell the land, and failed to make inquiry concerning the exercise of the power for thirteen years after attaining majority, when she was first informed of the fraud, she was held barred by her negligence from the privilege of asserting a claim to the premises. There was no evidence of a fraudulent concealment of her claim. So long however as the plaintiff remains, without fault of his own, under the influence of actual fraud on the part of the defendant, the rule of lapse of time will not apply. There can be no laches by delay in such a case; and where there are no laches, there can be no bar,5 except by statute. But it will be found to be true, as was declared in a recent case by Lord Selborne, that the doctrine of laches in courts of equity is no arbitrary or technical doctrine. 1 Jones v. Smith, 33 Miss. 215. 2 Campau v. Van Dyke, 15 Mich. 371. When it would be practically 232; Smallcombe's Case, L. R. 3 Eq. 769, Romilly, M. R.; s. c. L. R. 3 H. L. 249; Rolfe v. Gregory, 4 De G. J. & S. 3 Gregory v. Gregory, Coop. Cas. in 576, ante, p. 34. Ch. 201. 4 Weaver v. Carpenter, 42 Iowa, 343. Partridge v. Usborne, 5 Russ. 195, 6 Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221. unjust to give a remedy either because the party has done that which might fairly be regarded as equivalent to a waiver of it, or when, though not having strictly waived the remedy, he has yet put the other party in a situation in which it would not be reasonable to assert the remedy against him,-in either of these cases lapse of time and delay are very material.1 1 Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221, Lord Selborne. CHAPTER II. JURISDICTION. Ar a time within the memory of living lawyers the legisla ture had begun to lay a heavy hand upon the jurisdiction of the courts of common law, equity, and probate; towards which courts the term 'jurisdiction,' as applied to fraud, has its chief significance. In some of the states, as in Massachu setts, it was found necessary to create, and to nourish with unremitting care,1 a court of equity, and then at length to begin to remove, here and there, the barriers separating it from the domain of the law courts, and so to permit an easy escape from the one jurisdiction to the other.2 In other states, as in New York, where courts of law and courts of equity had long existed side by side, in hereditary independence, it was considered desirable to melt the two into one, the net result of which appears to have been a decided gain in favor of equity; and more recently the same has come to pass in England. Indeed it appears to be true that in New York, and in the states which have followed its example and pattern, and in England, all the courts have become substantially courts of equity.3 Another considerable legislative change has come about in 1 By the legislature; equity, as a growing jurisdiction, met with scant favor from the judiciary, oddly enough. See 1 Story, Equity, pp. 26, 27, note, 13th ed. 2 By the statutory permission, when needful, to turn a declaration at law into a bill in equity, and vice versa, at any stage of the proceedings. Mass. Pub. Sts. c. 167, § 431. See further, Acts of 1887, c. 383. 8 But separate jurisdictions of law and equity still exist in the greater part of this country. For the history of English legislation, briefly and concisely stated, see Maitland's Justice and Po lice, ch. 4. |