
    David Miles v. Dennis Berry.
    
      Tried befare Mr. Justice Martin, at Marion — Spring Term, 1833.
    tte'makei’of'a BoiyBereuy & and Sn-tadrunout: tho plaintiff on fraud, and that £ Bit""!? a:ffi Smtc’amount-h Siim abaStat the action11, ivaud‘’md!dtí!ó“ not ímwüwiiS£ tho note was.
    This was an action of assumpsit, to recover the amount of a note on the defendant, which the alledged to have been tost. The defendant the statute of limitations. The defendant is fhe son-in-law of the plaintiff. The week theplain-fjjff was to be married the second time, his little daughter, then about eleven years old, at the request her sister, the defendant’s wife, in the absence of her father, got the note out of his desk, and placed where the defendant could get it. She told w^eie ^ was> anc¡ as shortly afterwards it misssing, she has no doubt that he took it.— She kept this transaction concealed until her mar-dage, aaout three years ago. The plaintiff searched for the note, but never knew what had become of it until his daughter told after her marriage. The note was due, and went out of the plaintiff’s possession, more than four years ago, and there was no subsequent promise or acknowledgment proved. The jury found for the plaintiff. The defendant now moves for a new trial, on the ground, that the cause of action was barred by the statute of limitations.
    Graham, for the motion.
    The statute of limitations makes no exception in cases of fraud. Can a plaintiff in a Court of law, set up fraud in the defendant, to take a case out of the statute? 2 Sch. & Lef. 634, 2 Dough 654, 20 John. 33, 3 Mass. Rep. 201, Angel on limitations 191 — 2 Chitty on contracts 313. 2 Barn. & Cress. 192. But since the alledged fraud, more than four years have elapsed. This case is distinguishable from Harrell v. Kelly 2 M’C. 426, there the fraud existed in the inception of the contract — in the concealment of the right of action, not so here, for the evidence of the debt, is only concealed.
    Dargan contra.
    
    The taking the note by the defendant, was a recognition of the debt, and the statute will only run from then, and not then, if the theft he concealed, until after its discovery. Suppose the defendant had held the plaintiff in duress until the time of the stat. had run out, could he avail himself of his own wrong? There is no distinction on this doctrine between the Courts of law and Equity, and it has been repeatedly held, that fraud prevents the operation of the stat. until after the discovery of the fraud. Harrell v. Kelly 2 M’C. 246 is conclusive—3 P. W. 143, 2 Doug. 655. 3 Mass. Rep201 . E 4q. Rep. 480. 1 M’C. Ch. 426. This is different from the ordinary case of a lost note — The plaintiff could not safely bring suit, for if on the trial, the defendant produced the note, it would defeat him; until after the disclosure, he was not furnished with evidence to account for the defendant’s possession.
    Ervin in reply.
    The defendant is charged with a felony, and by the same act, it is said, he has impliedly promised, to pay the note. There is a plain distinction between this and the cases cited. Here, the plaintiff had a knowledge of the existence of the debt; in the cases referred to, that was concealed. If the plaintiff had brought trover for the note, the conversion being the gist of the action, and that being concealed, might have brought him within the rules laid down on this subject; Strange v. Durham. Brev. Mss. Rep.
   O’Neall J.

The act of 1712, P. L. 102. directs, that the action of assumpsit shall be brought within four years, next after the cause of action, and not after. To ascertain therefore whether the plaintiff’s action is barred, the most important inquiry is, when did the cause of action accrue? When this is ascertained, the determination, whether the statute has once run out, is a mere matter of numerical calculation which can easily be made. Many of the difficulties in the cases upon the statute of limitations, have arisen from losing sight of the words of the statute, and looking to what appeared to be just and right between the parties. The Judges here, and elsewhere, have however set about the work of reform in, this respect, and are now endeavoring to conform to the statute. Such a promise as will take a case o.ut of the statute of limitations, must be a good cause of action, and therefore from the time it is made, it may be fairly said, that the plaintiff’s cause of action accrues.

In the case before us, the plaintiff's action is on two notes fraudulently obtained from his possession by the defendant. The proof is however, entirely confined to one, which appears to have been due more than four years before action brought. The plaintiff’s cause of action upon it, accrued on the day on which it became due, and he is consequently barred by the statute of limitations, unless the fraud of the defendant, will prevent its operation. If the plaintiff’s action was predicated upon the defendant’s fraud, as in an action on the case for fraudulently .obtaining possession of the note, or ah action of trover for its recovery, it might then be urged, that the statute would not run if the fraud was not discovered, until within four years before action brought. For in such a case, the discovery of the fraud, would be the cause of action. So too as in the case of Harrell v. Kelly, 2 M’C. 426, where a person fraudulently obtains money belongingto another, it may be, that the statute of limitations would not bar the demand, until the expiration of four years from the discovery of the fraudulent receipt of the money. For in such a case, the discovery of the fraudulent receipt of the money, might be regarded as the cause of action; and to this extent, the case of Harrell v. Kelly is an authority in point. But unless the discovery of the fraud, can be regarded as the plaintiff’s cause of action, it cannot have the effect of preventing the operation of the statute of limitations. For to allow it to have effect in any other point of view, would be to make and allow by judicial construction, an exception to the statute of limitations, which the Legislature did not think proper to make. The plaintiff’s action is on the note, not on the fraud : his cause of action, is that the money which the defendant on a day certain, promised to pay him, is nqt paid. His right to demand payment, arose on the day on which the note fell due — this is his cause of action, and more than four years from its accrual having elapsed before his action was brought, the plaintiff is barred by the statute of limitations.

Motion for new trial granted.

JohnsoN & Harper Js. concurred.  