Allen v. Mille — 17 Wend. 202

Majority

p. 115

S. & M. Allen vs. Mille.

Headnote

It is no answer to a plea of the statute of limitations, that the cause of action was fraudulently concealed hy the defendant until after the statute had attached, and that the suit was brought within the time limited by the statute after the discovery of the right to sue.

• Statute of limitation. The declaration in this case is in trover, for the conversion of large quantities of bank bills, amounting in the whole to twenty thousand dollars; the day of the loss and conversion, laid in the declaration, is the 19th June, 1833. The suit was commenced January term, 1834. The defendant pleaded, 1. Non cul., and 2. .Actio non accrevit infra sex anno s. To

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the second plea the.plaintiffs replied, in substance, that on the 15th November, 1826, the bills in question were stolen from them by some person unknown, ■and secretly kept, and although they used great exertions to discover the ■bills and the person by whom the same were taken, yet the same proved fruitless until the 19th June, 1833, within six years before the commencement of the suit, when they for the first time discovered that the bills so secretly and feloniously taken and so secretly kept, were afterwards converted by the defendant, he well knowing the bills, at the time of the conversion, to be the . property of the plaintiffs, and that the same had been secretly and feloniously taken from their possession; that upon obtaining such knowledge, they immediately thereafter, to wit, on, &c., commenced this suit, the same being within six years after they obtained knowledge of the conversion of the bills ■by the defendant; concluding with a verification and prayer of judgment. The defendant rejoined, that the plaintiffs did not for the first time discover that the bills were after the 19th June, 1833, converted by him, he well knowing the bills to be the property of the plaintiffs. To this rejoinder the :'plaintiffs demurred.

S. Stevens, for the plaintiffs.

The rejoinder is clearly bad; it attempts to put in issue a fact not averred in the replication, and that not by way [203] of avoidance, but on pretence of answering the replication. The principal question however, is whether the replication is a sufficient answer to the plea of the statute of limitations. On the part of the plaintiff, it is insisted, that, it is a good and sufficient answer. The defendant, by the course of the pleadings virtually admits that he converted the bills with knowledge that they were the property, and had been feloniously taken from the possession of the plaintiffs. It can not be that the statutes of limitations was ever intended to protect a party under such circumstances. The plaintiffs could not sue, until they discovered the person against whom they had a claim, and therefore are not chargeable with sleeping upon their rights. Besides, they were kept in ignorance of their right to sue, by the felonious act of the defendant himselfkeeping gecrectly the money of the plaintiffs^[1] It is conceded that in Troup v. Smith's Ex'rs (20 Johns. R. 33), it was said that a plaintiff cannot reply the fraudulent concealment of the manner in which work was done in answer to a plea of the statute; but that case did not call for a decision upon that point, there being no averment in the re ■plication that there was a fraudulent concealment. That case is reviewed ■in 5 Mason, 147 to 156, and the doctrine held that want ¿f knowledge of the

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right to sue is a good answer to the statute especially when the plaintiff has been kept in ignorance by the fraudulent acts of the defendant. This is the doctrine in Massachusetts, Maine, Pennsylvania, and several of the other states of the union, and has received the support of judges in the English courts. In support of these positions the counsel cited in 3 Mass. R. 206 ; 5 id 143; 9 Rick. 245; 3 Greenl. 405; 3 Yeates, 109 ; 12 Serg. & Rawle, 128 ; 1 Heyw. 16, 359; 3 Dessaus. 223; 2 M'Cord's Law R. 426; 1 Hard. Kent. R. 258; 4 Bibb, 321 ; 1 Martyn, 227; 2 id. 591; Douglass, 654; 5 Barn. & Cres. 149.

J. L. Wendell, for the defendant.

The only admission of the defendant which can be taken into consideration in the determination of the demurrer in this case is, that the plaintiffs did not discover their right of action until after the statute had attached. He does not admit that he received the bills, knowing them to have been fraudulently taken from the [204] plaintiffs; and If such fact be considered as admitted, the plaintiffs of course must fail, for then the private injury would be merged in the public offence. The defendant only admits what is well pleaded, and that is the simple fact that knowledge of right of action against him was not obtained by the plaintiffs until more than six years after their cause of action accrued. That such facts is no answer to a plea of the statute, is considered as fully settled in Troup v. Smith's Executors (20 Johns. R. 33), subsequently recognized and confirmed in Leonard v. Hitney (5 Wendell, 30), where several of the cases cited on the other side were discussed and considered. The same doctrine is also recognized in Bank of Utica v. Childs (6 Cowen, 238). Under these circumstances, the numerous cases cited on the other side will not be adverted to, and it will only be added that the statute of limitations contains various exceptions; and although it has lately been revised, the legislature have not seen tit to incorporate an exception of the kind sought to be established by the replication in this case, notwithstanding that the decisions of this court upon this very question must have been well known. On the subject of the equitable construction of this slatute, the court is referred to Jackson v. Horton (3 Caines, 197), and to the case of Sacia v. De Graff (1 Cowen, 356), where it is said that it is not for the court to extend the law to all cases coining within the reason, if they are not within the letter of the statute.

By the Court

The rejoinder is probably defective for limiting the denial of the discovery of the bank bills and packages of money to a period after the 19th June, 1833, as it thereby impliedly concedes the fact on or before that time; and if we assume the matter set up in the replication to be a good answer to the plea of the statute of limitations, the rejoinder would not be a complete denial.

Whether the rejoinder is good or bad, however, is not material, as the principle question in the case arises upon the plea; that is, whether a fraudulent concealment of the cause of action by the defendant, until [205] after the statute has attached, affords a sufficient answer to the plea, provided the suit has been commenced within six years after the discovery. The question has been twice before this court, and after a full discussion decided in the negative. It would be an idle waste of time to go over the argument. In Troup v. Smith's Executors (20 Johns. R. 48), Spencer, C. J. says: “ But we wish to be understood as deciding the case on the ground, whether there was a fraudulent concealment or not, so as to prevent the plaintiffs discovering the fraud until within six years before the commencement of the suit; sitting as a court of law, and bound by the express provisions of the statute, We could not notice the fraud, so as to take the case out of the operation of the statute.” One of the counsel on the argument, in the case before us, supposed that the fact of a fraudulent concealment of the cause of action in the case of Troup v. Smith, was not set up in the pleadings. A

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reference to the case will show this to be a mistake, p. 35, as it is there alleged that Smith fraudulently and deceitfully showed and delivered to the plaintiff certain false and incorrect field notes and maps of the survey, from which it appeared that the survey had been done in a good and workmanlike manner. In Leonard v. Pitney (5 Wendell, 30), the fraudulent concealment of the defect of the title by the defendant was expressly averred.

Some of the judges in England in late cases have intimated an opinion that a fraudulent concealment by the defendant would take the case out of the statute even at law, as well as in equity; but we are not aware of any decision upon the point. The intimation is founded upon the dictum of Lord Mansfield, in Bree v. Holbeck (Doug. 654), which Chief Justice Spencer, in Troup v. Smith's Executors, refused to acknowledge as an authority, p. 46. See also 2 Brod. & Bing. 73; 2 Barn. & Cr. 153; Wilt, on Limitations, 115.

Judgment for defendant on demurrer; leave to plaintiffs to amend.