McKown v. Whitmore

Howard, J. The statute of limitations furnishes a bar to this action for the defendant, unless he has lost its protection by a fraudulent concealment of the cause of action, from the knowledge of the plaintiff, until within six years prior to the commencemept of the suit. R. S. c. 146, § 1, 18. It appears that the defendant received the plaintiff’s check •on the Franklin Bank, for $294, on November 12, 1842, and that he received the money on the check from the bank, on November 16, 1842, under an agreement to deposit the amount of the check in the bank, to the credit of the plaintiff “ in a few days afterwards.” The defendant alleged that he made the deposit as agreed, but the books of the bank did not contain any evidence of it, nor was there any proof that it had been done. He might, however, have made; the payment as he stated, and the cashier of the bank might have neglected to enter it upon the books. But if his statement was erroneous, and if he did not in fact make the deposit, it might have been a breach of á moral and legal duty, but would not consti [451] tute a fraudulent concealment of the fact from the knowledge of the plaintiff. For the plaintiff knew, or had the most ample and direct means of knowing, by the exercise of common prudence, and in law was held to know, whether the money had been paid or withheld. The books of the bank, and his account there, open at all times to his inspection, as well as his own pass-book, would have enabled him to detect the error, at once, if it existed, either in the statement, or payment, or credit. If he neglected his rights and interest in this respect, he must submit to the regular operations of the statute, which protects alike the debtor and the creditor. The alleged cause of action having accrued more than six years before the date of the writ, and there being no proof of fraud or concealment, the suit is barred by the statute of limitations. Plaintiff nonsuit.