
    Rice v. White.
    April, 1833.
    Deceit — Statute of Limitations — When It Begins to Run.t — In an action for deceit in a sale of a chattel, there is a plea of the statute of limitations, a general replication thereto, and issue thereon joined: Held, the cause of action accrued at the time of the deceit practised, and the limitation begins to run immediately.
    Same — Same—Same—Quaere— Special Replication.— It seems, that if the fraud was not discovered till some time after it was practised and within the time of limitation, this would suffice to talie the case out of the statute: but to enable the plaintiff to avail himself of such matter, he must plead it specially in his replication.
    Same — Pleasure of Damages. — Quaere, in an action for deceit in the sale of a slave, by vendee against vendor, what is the proper measure of damages? the purchase money with interest, or the value at the time the property was recovered from the vendee for defect in the vendor’s title?
    This was an action on the case for deceit in the sale of a slave, brought by White against Rice, in April 1826, in the circuit court of Halifax. The declaration contained several counts: those on which the plaintiff relied at the trial, ^alleged, in substance, that Rice, professing to act as the agent of one Ann Foster, and by authority from her, in making sale of a female slave, and knowing that Mrs. Foster had only a life interest in the slave, and that the reversion after her death belonged to the executor of one Matthew Rice deceased, falsely and fraudulently represented and warranted to White, that Mrs. Foster, was entitled to the absolute property in the slave, and by means of that deceit, sold the same to White, at a full price for the absolute property; and the executor of M. Rice, afterwards in an action against one Hewellen, to whom White had sold the slave, recovered the same; and so by means of the. deceit practised on him by the defendant Rice, whereby he was induced to give a full price for the absolute property of the slave, White not only lost the property, but was compelled to incur great expense in defending the title &c. The defendant pleaded two pleas in bar, the entry whereof in the record, and of the issues thereon, was in these words t “And the defendant by his attorney, comes and defends the wrong- and injury, when &c. and for plea saith, that he is not guilty in manner and form as the plaintiff against him hath complained; and the defendant for further plea, pleads the statute of limitations; and of this he puts himself upon the country; and the plaintiff likewise.
    At the trial of the issues, several bills of exceptions were filed by the defendant’s counsel to opinions of the court; but it is not necessary to state them, as none of the points thereby presented were noticed in the argument heie, or touched by the court, in its decision of the cause.
    The jury found a verdict for the plaintiff on both issues, and assessed his damages to 459 dollars.
    Whereupon the defendant moved the court to set aside the verdict, and direct a new trial, 1. because the verdict was not warranted by the evidence; 2. because the jury had given excessive damages; and 3. because the action in point of law could not be maintained against the defendant. The judge, at his instance, certified, that the following facts were proved at the trial, viz:
    *That Rice, the defendant, in the year 1811, as the agent of his mother, Ann Foster, sold the slave in question to the plaintiff, White, for 220 dollars; and part of the purchase money was applied to the discharge of a debt then due by Mrs. Foster, and’the balance to a debt due by the defendant himself, to the plaintiff; that, at the time of this sale, the defendant knew that Mrs. Foster had only a life interest in the slave, and that the reversion belonged to the executor of M. Rice deceased, Mrs. Foster’s first husband and the defendant's father; and he did not disclose these facts to the plaintiff: that Mrs. Foster died in 1817; and then the executor of M. Rice brought an action of detinue against Mary Lewellen, to whom the plaintiff had in the meantime sold the slave, and recovered judgment against her for the slave or the alternative value thereof, and damages for the detention; which value was ascertained by the jury to be-, and the damages for the' detention were assessed at-: that Mrs. Lewellen then brought suit against the plaintiff, to recover of him retribution, of what had been recovered of her by Rice’s executor; and in that action recovered a judgment, and sued out execution for the damages and costs adjudged to her, amounting to the sum of 459 dollars [which was the amount of damages assessed to White, by the verdict of the jury in this suit] ; but the defendant insisted, that, if the plaintiff was entitled to recover in this action at all, the measure of damages should be the purchase money paid by the plaintiff for the slave, with interest thereon from the time the right of action for her accrued to M. Rice’s executor.* Upon this state of facts, the defendant’s counsel moved for a new trial, on the grounds above mentioned. The court overruled the motion, and the defendant excepted.
    Judgment was then given for the plaintiff, for the damages assessed by the jury and costs; from which the defendant appealed to this court.
    The cause was argued here, by Johnson for the appellant, and Leigh for the appellee.
    I. Johnson insisted, that the proper measure of damages was the purchase money, with interest from the time when the action of Rice’s executor for the slave sold to White accrued. And Leigh, earnestly contended, that the actual amount of damages, which the purchaser sustained b3T reason of the defect of the title, and the deceit practised upon him in regard thereto, was the just measure of retribution due to him, which was ascertained, in this case, by Mrs. Lewellen’s recovery against him. Otherwise, he said, no one could ever safely purchase a female slave; for, if she should have increase, she would herself be of little profit to her owner, and the children would be a charge during their childhood ; and then, the mother and all her increase might be recovered of the vendee, and he, after being at the charge of rearing the children, would only get back the purchase money he had paid for the mother. But this point, though very fully debated at the bar, was not noticed by the judges, in their opinions.
    II. Johnson maintained, that upon the state of facts proved at the trial, as certified by the judge, the verdict ought to have been for the defendant upon the issue joined on the plea of the statute of limitations. He said, the deceit practised by Rice in the sale of the slave to White, was the only cause of action, which White could have against Rice; and the action for the deceit accrued immediately upon the sale, which was in 1811; but this action was not brought till April 1826. He cited Batley v. Faulkner. 3 Barn. & Aid. 288; Short v. M’Carthy, Id. 626; S Eng. C. L. R. 288, 403; ^Granger v. George, S Barn. & Cress. 149; Howell v. Young, Id. 259; 11 Eng. C. L. R. 185, 219; Bank of Utica v. Childs, 6 Cowan 238; Miller v. Adams, 16 Mass. Rep. 456; Wiicox v. Plummer, 4 Peters 172.
    Leigh said, that the fraud was sufficient to take the case out of the statute of limitations; Bree v. Holbech, 2 Doug. 656. That, in this action for deceit, the cause of action accrued when the deceit was discovered ; for the effect of the deceit was riot only to defraud the part3r injured, bul-to conceal the fraud from hirn; and to give the wrongdoer the benefit of the statute of limitations, during the time the injured party was lulled into security by the very deceit practised upon him, was, in effect, to allow him to derive from his own wrong, all the advantage he could have derived from perfect fairness in the transaction; it would exempt him from responsibility for the deceit, unless, by chance, it should be discovered before the time of limitation should expire. Clarke v. Hougham, 2 Barn. & Cress. 149; 9 Eng. C. L. R. 47; Brown v. Howard, 2 Brod. & Bing. 73; 6 Eng. C. L. R. 25; The first Massachusetts Turnpike v. Field, 3 Mass. Rep. 201; Sherwood v. Sutton, 5 Mason 143. It might be said, that, if the action for the deceit accrued when it was discovered, yet the fact of the deceit being discovered within Lhe time of limitation, ought to be put in issue by a replication in avoidance of the plea of the statute; and this, as a general proposition, might be true: but, in this case, the statute of limitations was not formally pleaded, and the same regularity of pleading on the plaintiff’s part, ought not to be required of him, as if the defendant’s pleading had been regular. It was the design of both parlies to dispense with form, and to put in issue the whole merits of the defence founded on the statute of limitations. The defendant pleaded “the statute of limitations,” without saying how the statute operated as a bar, and tendered an issue; and the plaintiff, without saying how his action was within the time, accepted the issue. The pleadings left both parties (and were intended to leave them both) at large, to shew when the action accrued.
    '^Johnson replied, that the defendant’s plea of “the statute of limitations,” though irregular, was as good after issue taken upon it, as if it had been ever so formal and technical; and the authorities cited for the appellee shew that the matter of avoidance now relied on in argument, ought to have been pleaded in a replication, in order that it might have been put in issue, or demurred to. But it was questionable, to say the least, whether the fact of the deceit haying come to the knowledge of the , plaintiff within the time of limitation, would have sufficed to avoid the operation of the statute; Callis v. Waddy, 2 Munf. Sil; Troup v. Smith, 2 Johns. Rep. 33; Leonard v. Pitney, 5 Wend. 30.
    
      
      Deceit — Statute oí Limitations — When it Begins to Run. — To the point that the right of action for deceit occurs at the time the deceit is practiced, and the statute of limitations begins to run at once, the principal case is cited in Merchants’ National Bank v. Spates, 41 W. Va. 32, 23 S. E. Rep. 682; Fant v. Fant, 17 Gratt. 14.
      In Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. Rep. 795, it was held that where a cause of action arises out o.f fraud the statute of limitations runs from its perpetration; but that this rule did not apply to fraudulent transfers. In delivering the opinion of the court, Brannon, J., said: Callis v. Waddy, 2 Munf. 511, Rice v. White, 4 Leigh 474, Cook v. Darby, 4 Munf. 444, and Fant v. Fant, 17 Gratt, 14, say that statute runs from the act of fraud."
      In Rowe v. Bentley, 29 Gratt. 760, it is said: “In the cases of fraud the authorities are conflicting, as to whether at law the statute begins to run from the commission of the fraud, or from its discovery. Angell on Lim. § 183 to § 189; Callis v. Waddy, 2 Munf. 511; Rice v. White, 4 Leigh 474; 1 Rob. Prac. (Old Ed.) pp. 82, 87, 110. In equity, however, it would seem to be well settled that the statute begins to run only from the discovery of the fraud. Shields, Adm’r, etc., of Waller & others v. Anderson, Adm’r of Byrd, etc., 3 Leigh 729 ; 2 Rob. Prac. (Old Ed.) 251, 252."
      Seethe principal case also cited in Scates v. Wilson, 9 Leigh 477; Huston v. Cantril, 11 Leigh 160; Thornburg v. Bowen, 37 W. Va. 548, 16 S. E. Rep. 828.
      See further, monographic note on "Limitation of Actions” appended to Herrington v. Harkins, 1 Rob.
    
    
      
      Statute of Limitations — Exception—Special Replication. — If there is anything that takes a case out of the statute of limitations, it can only be availed of by stating it in a replication to the plea of the statute. To this effect, the principal case is cited in Merchants’ National Bank v. Spates, 41 W. Va. 33, 23 S. E. Rep. 683; Davis v. McMullen, 86 Va. 267, 9 S. E. Rep. 1095; Vanbibber v. Beirne, 6 W. Va. 178. See Boyle v. Conway, 3 Call 1, and .foot-note.
      
    
    
      
       Same — Measure of Damages. — In case for deceit there is, perhaps, no fixed rule for the assessment of damages; they are not limited, however, as in an action on the warranty; if so, they may go beyond those recoverable in an action on the warranty. Boyles v. Overby, 11 Gratt. 205, citing the principal case, and Brown v. Shields, 6 Leigh 440.
    
    
      
      Thi,s bill of exceptions did. not state the date of the Institution of the suit of liice’s executor apainsi, M rs. Lewellen. nor the date of his judgment against her, nor the alternative value of the slave ascertained “by tha.t judgment, nor the damages assessed for the detention; and these facts appear no where in the record. Neither did this hill of exceptions stale the date of the institution of Mrs. Lewelien's suit, or ot her judgment against white; but it appeared from the record of that suit, set out in another bill of exceptions died at the trial, that it was commenced in February 1825, and the iudgmenl recovered in November following. This suit of White v. Rice was commenced in April 1826.— Note in .Original Kdition.
    
   CARR, J.

The counsel for the appellant, in the argument, confined himself to the bill of exceptions taken to the refusal of the court to grant a new trial, which contains a statement of the facts proved at the trial, certified by the judge.

The suit was brought in 1826. The declaration charged fraud and deceit practised by the defendant on the plaintiff, in the sale of a female slave in 1811. The pleas were not guilty, and “the statute of limitations;” on both which issue was directly taken.

It was contended, by the appellant’s counsel, that the evidence shewed a case, which, on the plea of the statute, proved the verdict to be against both law and evidence; and, consequently, that the court erred in not granting .a new trial. I was exceedingly struck with the argument of the appellee’s counsel in reply, and was strongly inclined to believe with him, that the statute could not run in such a case till the fraud was discovered. But an examination of the cases has compelled me to think, that, in the actual state of the pleadings, the decision refusing the new trial was wrong. The statute says, “the action shall be brought within five years next after the cause of such action or suit and not after.” The question then is, when did the action accrue? It seems to me, that it must be said to have accrued when *the fraud in the sale was perpetrated. Suppose, that in a month after he had received the slave, and paid his purchase money, the plaintiff had discovered the cheat; could he not instantly have brought suit for it? What should prevent him? Could the defendant ward off the action by pleading that the plaintiff had received no injury, and possibly never might? surely, not: the injury was in the fraud; in selling him a slave out and out, to which he knew his mother had no title longer than her life. This doctrine is held, explicitly, in many cases cited at the bar. I do not undertake to decide, how the question would have been, if to the plea of the statute, the plaintiff had replied, that the defendant had fraudulently and deceitfully concealed from him the cheat he had practised upon him; and that the suit was brought within five years after the discovery. In that case, there must have been either a demurrer, which.would confess the fact, and put the case upon the law; or an issue, and then the fact would be directly in issue. But here, the issue is different; it is taken directly upon the statute; that is, upon the question, whether the suit was brought within five years after the cause of action arose. I think the judgment should be reversed, and the cause sent back for a new trial, when the plaintiff may move to amend his pleadings, if he shall be so advised.

CABELL and BROOKE, J., concurred.

TUCKER, P.

Our first attention, in this case, must be turned to the state of the pleadings. (He stated them.) Upon the trial of the issues a verdict was rendered for the plaintiff upon which the defendant moved for a new trial.

If the plea of the defendant be an immaterial plea, it is obvious, that no new trial ought to be granted; for it would be vain and futile to award a new trial for an immaterial matter; of a matter which, even if found for the defendant, could not entitle him to a judgment. But here, the plea of “the statute of limitations,” only seems to be an informal, *and not an immaterial plea. If pleaded formally, it would be a bar; and, accordingly, we find it was so considered in Cook v. Darby, 4 Munf. 444. That was trespass on the case against a common carrier for embezzlement; pleas, not guilty and “the act of limitations” -in those words only, and issue: the plaintiff’s evidence proved embezzlement fifteen years before the action: the defendant moved the court to instruct the jury, that the statute of limitations barred the action; but the court instructed the j ury, that the statute did not apply: exceptions were taken, and a supersedeas allowed by this court. The appellee’s counsel contended, that the statute did not apply to the case, as the declaration charged a fraud: but the court, nemine dissentiente, reversed the judgment, on the express ground that the statute well applied to the case. Now, this could not have been, if the court had not considered the plea, as pleaded, a material and substantial plea, however informal. It was expressly assailed as being defective, and was likened to the plea of “justification,” which it is admitted is not good; Kirtley v. Deck, 3 Hen. & Munf. 388. But the objection did not prevail; the distinction, indeed, being evident, between the plea of “thestatute of limitations,” which offers a distinct and specific ground of de-fence, without any thing more, and the plea of “justification,” which unless carried out, is utterly nugatory. The first gives the plaintiff fair and full notice of the defence set up; whereas the second subserves no purpose of pleading, as it does not give notice of the character of the “justification,” on which the defendant will rely. Kerr v. Dixon, 2 Call 319. It is true, that in the case of Henderson v. Foote’s ex’ors, 3 Call 248, the court seemed to think, that the plea of non assumpsit, within five years, referred to the time of the plea, according to the decision of Smith v. Walker, 1 Wash. 135, and that it was, therefore, an immaterial plea; but as, in every case, it is now held to be the settled rule that “ac-tio non” goes to the commencement of the action, the plea ought certainly not to have been gratuitously considered as violating this *rule. If the short minute of the plea is to be considered as sufficient after verdict, it is because the court will intend it to be carried out into proper form. It certainly would not intend it to be extended into an improper form, unless its terms required it. This case, therefore, must yield to the case of Cook v. Darby; and the rather, as it does not seem to have been much considered, por was the point essential to be decided.

Taking1 the plea as substantially good, there is no doubt that it was fully sustained by the evidence. Bor, in an action of deceit in the sale of property, the cause of action arises at the instant; and the plaintiff might, in this case, have sued the next day after the perpetration of the fraud, and have recovered his damages to the value of the purchase money paid. The numerous authorities cited at the bar to this point, are satisfactory and conclusive: I shall only mention, particularly, Battley v. Faulkner, Short v. M’Carthy, and Howell v. Young. In this last case Holroyd, J., says, ! '"whether the plaintiff elects to sue in one form of action or another [either for a breach of promise, or for a breach of duty] the cause of action, which in either form is substantially the same, accrued at the •same moment ox time: and the breach of promise, or of duty, took place as soon as the defendant took insufficient security.” In the case before us, therefore, the plaintiff might have brought his action the day after the sale, and recovered damages, if he had then known of the defect of title and the fraud practised on him.

But it is said, he did not know it; that it does not appear that the fraud was discovered more than five years before the suit brought; and that, therefore, the bar of the statute does not apply. Had the plaintiff replied that matter, I should have been unwilling to disturb the verdict on the ground of the statute. But he has not done so. He has joined issue on the plea, instead of replying the matter which would have avoided it. He cannot, therefore, avail himself of this matter in avoidance of the statute. He ought to *have replied it, that the defendant might have taken issue on the fact of discovery. Non constat but that the defendant might, if he had been called upon to do so by such a replication, have proved the knowledge on the part of the plaintiff, of the defect of title, on the next day after the sale. On general principles, it is as necessary that the defendant should be informed by the replication of the particular avoidance of the statute, in order that he may rebut it, as that the plaintiff should be informed of the ground of defence by plea, that he may be prepared to meet it. Nothing is more clear than that exceptions to the statute must always be replied,or any other matter which avoids its influence. Bogle v. Conway’s ex’ors, 3 Call 1. In Clark v. Hougham, 2 Barn. & Cress. 149, the plea was non assumpsit within six years; replication, that the defendant did assume within six years. Bailey, J., said, in reference to certain evidence given in the case, “The question how far fraud may prevent the operation of the statute of limitations, does not properly arise in this case. On the form of the replication adopted, the only question is, when did the cause of action accrue? In order to take advantage of the fraud, there should have been a special replication.” And of the same opinion were the other judges.

I am therefore of opinion, that the statute was a good bar to the action, and was sustained by the evidence. The verdict being, then, against the evidence, should be set aside, and a new trial awarded. When the verdict is set aside, the plaintiff may have leave to withdraw his informal replication, and reply that the fraud was discovered within five years before the commencement of the action, which would be, T think, a sufficient answer to the plea. Bree v. Holbech, 2 Doug. 632; Booth v. Earl of Warrington, 4 Bro. P. C. ; Tomlin’s edi. 163.

Judgment reversed. 
      
      This case, as the reporter is informed, had been compromised between the parties, before the hearing of it in this court. — Note in Original Edition.
     