Troup v. Executors of Smith

Spenceb, Ch. J. delivered the opinion of the Court. The defendants have demurred generally to the plaintiff’s replications to a plea of the statute of limitations. The declaration is in assumpsit, on the promises of the testator, as a surveyor, for a reward to be paid to him therefor, by the plaintiff, to survey out into lots, skilfully and accurately, a township of land, and to delineate the same on a map, to enable the plaintiff, the proprietor thereof, to sell the same in parcels, and to actual settlers. The breach alleged is, that although the testator was paid therefor, a large sum of money, he negligently and fraudulently performed his undertaking. — 43 — and did not faithfully and accurately execute the work; but, on the contrary, did it so unskilfully and negligently, that the same was of no value to the plaintiff. The defendants pleaded the statute of limitations; that the action did not accrue to the. plaintiff, within six years before the exhibition of the plaintiff’s bill. To this plea the plaintiff replied, setting forth the particulars of the testator’s fraud in making the survey, and the unskilful, insufficient, and unworkmanlike manner in which the work had been done; and that the land, at the time of the survey thereof, was in a state of nature, and was covered with timber, trees, and underbrush; and that by reason thereof, and of the false and incorrect field-notes, maps, and plats, the fraud and deceit practised by the testator were not discovered by the plaintiff, until a long time after the contract was performed, and after parts of the land had been contracted to be sold by the plaintiff to settlers ; to wit, on the first day of May, 1818, at, &c. There'are four several replications, substantially to the same effect; to these the defendants have put in a general demurrer. Upon the argument, several exceptions were taken to the replications : 1st. That the action, as set forth in the replications, does not lie against executors. 3d. That the replications are a departure from the declaration. 3d. That they are double, inconsistent, and uncertain; and, 4. That the excuse set forth, in avoidance of the plea, is insufficient. As the opinion of the Court is founded on the last exception, it will not be necessary to examine, particularly, the other objections to the replication; but we have no difficulty in saying, that they are not well taken. It is a general rule, that a replication must not depart from any material allegation in the declaration; yet, where there is an evasive plea, the plaintiff may avoid the effect of it by restating his cause of action with more particularity and certainty, and so as to meet and thwart the particular defence set up. (1 Chitti's Pl. 602, 603.) An action will not lie against the representatives of a party for a fraud, which does not benefit the assets; but it will lie upon a contract which has been fraudulently performed. As to the duplicity complained of, if any exists, the objection cannot be taken — 44 — on a general demurrer. The question, then, is, whether the frauds disclosed in the replications, in the survey made by the testator, and the non-discovery of those frauds, from the causes set forth, within six years from the performance of the survey, preclude the defendants from pleading the statute of limitations, in avoidance of the plaintiff’s original cause of action ? And this leads to the inquiry, whether the plaintiff can, in a Court of law, set up a fraud on the part of the defendant, to take a case out of the operation of the statute of limitations; and, if he can, whether sufficient matter has been alleged to deprive the defendants of the protection of the statute? The statute (1 N. R. L. 186.) enacts, that all actions upon the case, and of account, other than actions for slander, and actions which concern the trade of merchandise between merchant and merchant, their factors and servants; and all actions of debt for arrearages of rent, or founded on any contract without specialty, and all actions of trespass, detinue, and replevin, for goods or chattels, and actions of trespass quare clausum fregit, shall be commenced and sued within six years next after the cause of such actions accrued, and not after. There are then savings, in case of the arrest or reversal of judgments, in favour of infants, feme coverts, insane or imprisoned persons, and where a person against whom a cause of action shall accrue, and who shall be out of the state at the time the same accrues; giving the person entitled to the action a right to bring the same within the times limited, after the return of the person so absent into this state. It was urged, on the argument, that the plaintiff’s cause of action might be considered as accruing, when he discovered the fraud in making the survey by the testator; or that the Court might say, that this case, and others similarly circumstanced, were not within the spirit and intent of the statute. It will readily occur to the profession, that Courts of law have, in many instances, introduced great refinements in the construction of statutes; and that, in some instances, judges of great celebrity have deplored the first aberration from the plain and natural meaning of the words of statutes. With respect to the statute now under consideration, there has been great latitude of construction, going — 45 — almost to its abrogation. I mean, as to what amounted to an acknowledgment of a debt, so as to take it out of the operation of the statute; and, of late, Courts of law are travelling back to the support of the plain and obvious meaning of the enactment. After premising thus much, the inquiry is, when did the plaintiff’s cause of action accrue ? Most certainly, when the fraud was consummated; and that was when the testator had completed the survey, as far as it was completed, and made returns of his field-notes, maps, and plats, and received his compensation. The injury, as far as he was concerned, was then done; and he became, immediately, liable to an action, for the fraudulent and imperfect manner of executing the duties he had assumed. The fact, that the plaintiff did not discover the imposition practised upon him, is entirely distinct from the existence of such fraud and imposition. If, then, the plaintiff’s cause of action accrued upon the consummation of the fraud by the testator, and not at the time the plaintiff discovered it, the statute interposes as a protection, unless the action has been commenced and sued within six years next after the cause of action accrued. But it is asserted, that fraud committed under such circumstances as to conceal the knowledge of a fact, and thus preventing a plaintiff from asserting his rights within the limited period, may be replied, and is an answer to a plea of the statute of limitations, if the action or suit be brought within six years after the discovery of the fraud. The only case in support of this position, in a Court of common law, in the English Courts, is that of Bree v. Holbeck, (Doug. 654.) In that case, the replication, after setting forth the means by which the plaintiff had been defrauded, went on to state, that the plaintiff, at the time of the execution of the assignment, and of paying the money, was ignorant of the falsehood of the assertions, and of the fraud so practised upon him; and did not discover them till within the space of six years next before suing out the writ. To this replication there was a demurrer. Lord Mansfield was of opinion, that the replication had charged no fraud on the defendant. He said, "there may be cases, too, which fraud will take out of the statute of limitations.” The plaintiff’s attorney had leave to amend, in case, upon inquiry, the facts would support a — 46 — charge of fraud ; and there is no further trace of the case. In case of The First Massachusetts Turnpike Company v. Field and others, (3 Mass. Rep. 201.) the question arose on a replication, which showed the impracticability, if not impossibility, of, discovering the fraud. The replication stated, that the defendants fraudulently and deceitfully concealed the bad foundation, the unsuitable materials, and the work unfaithfully executed, by covering the same with earth, and smoothing the surface, so that it appeared to the plaintiffs that the contract had been faithfully executed. Parsons, Ch. J. held, that the replication must disclose a fraudulen^transaction in the defendants, by which the time when the cause of action accrued must have been fraudulently concealed from the knowledge of the plaintiff, until a period within six years before the action was commenced; and that where the delay of bringing the suit is owing to the fraud of the defendant, the cause of action against him ought not to be considered as having accrued, until the plaintiff could obtain the knowledge that he had a cause of action; and that if this knowledge is fraudulently concealed from him by the defendant, the Court would violate a sacred rule of law, if they permitted the defendant to avail himself of his own fraud. The only cases referred to by Chief Justice Parsons, are, Bree v. Holbeck, and The South Sea Company v. Wymondsell, (3 P. Wms. 143.) which refers to the case of Lord Warrington, where he had a decree, notwithstanding the statute of limitations was pleaded; the bill having been amended by charging the discovery of the fraud to be within six years before exhibiting his bill. The same principle has been adopted in the Courts of some of the other states. We cannot, however, yield the convictions of our own minds to decisions evidently borrowed from the Courts of equity, and which never have been sanctioned in the Courts of law in that country from which our jurisprudence is derived. It has been already observed, that the dictum of Lord Mansfield, in Bree v. Holbeck, is the only instance in which such a position was ever advanced in Westminster-Hall; and when it is further considered, that his Lordship had an inclination to intrench on Courts of equity, that mere dictum cannot be regarded as authority. — 47 — There is a marked and manifest distinction between a plea of the statute of limitations in a Court of law, and in a Court of equity. The best and fullest view of the effect of such a plea, in a Court of equity, is given by Lord Redesdale, in 2 Sch & Lef. p. 634. He says, that although the Statute does not, in terms, apply to, suits in equity, it has been adopted there, as a rule prescribed by the legislature; and the reason he gives, why, if the fraud has been concealed by the one party, until it has been discovered by the other, within six years before the commencement of his suit, it shall not operate as a bar, is this: that the statute ought not in conscience to run ; the conscience of the party being so affected, that he ought not to be allowed to avail himself of the length of time. This is very intelligible and sound doctrine, in a Court of equity; and is, I apprehend, the true and only tenable ground to deprive a defendant of the benefit of the plea. Courts of equity, not being bound by the statute, any further than they have seen fit to adopt its provisions as a reasonable rule, and then only in analogy to the general doctrines of that Court, are perfectly right in saying, that a party cannot, in good conscience, avail himself of the statute, when, by his own fraud, he has prevented the other party from coming to a knowledge of his rights, until within six years prior to the commencement of the suit. But Courts of law are expressly bound by the statute ; it relates to specified actions; and it declares that such actions shall be commenced and sued within six years next after the cause of such actions accrued, and not after : thus, not only affirmatively declaring within what time these actions are to be brought, but inhibiting their being brought after that period. I know of no dispensing power which Courts of law possess, arising from any cause whatever; and it seems to me, that where the legislature, in the same statute, gives an extension of time, in cases of the arrest or reversal of judgment, in cases of infancy, coverture of the feme, insanity, and imprisonment, and for an absence of the defendant out of the state, when the cause of action accrued, that it would be an assumption of legislative authority to introduce any other proviso. The plaintiff’s case may be a very hard — 48 — one; but that affords no reason for construing away a statute of great public benefit, and which, in many cases, is a shield against antiquated and stale demands. The plaintiff’s counsel sought to derive aid to their argument from the case of Fowler v. Hunt, (10 Johns. Rep. 464.) in which the question was on the last proviso of the statute, and whether the defendant had, at a certain period, returned into this state. We held, that the return into this state must not be clandestine, with an intent to defraud file creditor, by-setting the statute in operation, and then departing; that it must be so public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence, and due means, of arresting the debtor. The argument of counsel was, that if the Court could, in the one case, examine into the spirit and intent of the statute, they were at liberty to do so in the other case. Having once ascertained when the plaintiff’s cause of action accrued, there was nothing left for construction; for then the statute interposes, and requires the suit to be brought within the period limited, except under the modifications contained in the proviso. But were we to proceed on the suggestion of Lord Mansfield, the plaintiff would then have failed to make out a case entitling him to an exemption from suing, because, he did not discover the fraud of the testator until the first day of May, 1818. The concealment of the fraud is not imputed to the testator. What he did was visible, and what he neglected to do would, or might have been* discovered by repairing to the land. There was no concealment of the work actually done, as in the case in 3 Mass. Rep. 201.; and it was neither impossible nor impracticable to find out the fraud. That the lands were in a state of nature, and thickly covered with forest trees and underwood, certainly would not have prevented the detection, had means been adopted for that purpose. But we wish to be understood, as deciding the case on the ground, that whether there was a fraudulent concealment or not, so as to prevent the plaintiff’s discovering the fraud, until within six years before the commencement of this suit, sitting as a. Court of law, and bound by the express provisions of the — 49 — statute, we could not notice the fraud so as to take the case out of the operation of the statute. Judgment for the defendants, with leave to the plaintiff to amend.