Cole v. McGlathry

Weston J.

delivered the opinion of the Court.

The cause of action in this case, accrued more than six years prior to its commencement. The defendant relies upon the statute of limitations. No admission of indebtedness, or promise on his part to pay within six years, is proved. The plaintiff insists that by reason of the fraud of the defendant, the statute does not attach. The fraud set up, consists in a violation of his engagement, which might with equal reason be relied upon in all cases. Had not the plaintiff slumbered upon his rights, and confided in the defendant, beyond the bounds of ordinary prudence, he had, at an earlier period, a sufficient and effectual remedy. The defendant, in not fulfilling his promise, was guilty of a breach of moral and legal du *133 ty ; and so is every debtor, who does not pay at the stipulated time. In order to take a case out of the statute upon this ground, there must be proof of actual fraud and concealment, by the party to be charged. The cases of Bree v. Holbrook, and of the First Mass. Turnpike v. Field & als., cited in the argument, establish and qualify this exception to the statute. The principle underwent a very elaborate discussion in Farnham v. Brooks, 9 Pick. 212, and the court distinctly state that the operation of the statute is unaffected, if the party upon whom the fraud is practised had full means of detecting it. If the defendant, failing to pay as he agreed, was guilty of fraud, the plaintiff had the power of detection. Indeed but for gross negligence on his part, it must have been discovered. But the facts do not present a case of fraud, within the principle of the exception, upon which the plaintiff relies. The only wrong imputable to the defendant, was an omission to pay, until long after the statute had attached. Then indeed to former delinquency, he added falsehood, according to the testimony of Mr. Jones ; but that made his case no better; and his protection being before complete under the statute, it made it in legal contemplation, no worse. It could not have the effect to revive the debt. Nonsuit confirmed.