
    Solomon S. Loffland v. Timothy H. Bush.
    1. The fourth clause of section 15 of the code of civil procedure, limits the period within which an action can be brought by the maker of a promissory note to cancel the same on the ground of fraud in obtaining it, to four years after the discovery of the fraud.
    2. Want of consideration merely, is not a ground of equitable jurisdiction for the cancellation of a non-negotiable promissory note, either before or after its maturity.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Sandusky county. '
    The original action was brought by the defendant in error against the plaintiff in error in the Court of Common Pleas of the county named, on the 16th day of November, 1872, to compel the surrender and delivery up to be canceled of a non-negotiable promissory note, given by the defendant in error to the plaintiff in error, for $1,000, dated December 11, 1866, and payable on or before the first day of November next thereafter, and which, the petition avers, was obtained by certain false representations, which are fully set out in the petition. The petition also avers that the note is without consideration, and is in the possession of the plaintiff' in error, who is demanding payment thereof.
    The answer denies the allegations of false representations and want of consideration set forth in the petition, and also-the allegation as to the possession of the note; and, for a second ground of defense, says that the cause of action set forth in the petition did not accrue within four years before-the action was commenced.
    The reply denies that the action is barred by the statute of limitations.
    On the trial in the District Court, in which court the-cause was pending on an appeal from the judgment of the Court of Common Pleas, the plaintiff below produced evidence tending to establish the false representations set out in the petition, and also testified that he discovered the-false and fraudulent character of the representations, by which he was induced to become the maker of the note in suit, in February or March, 1867.
    The defendant also produced evidence tending to controvert the allegations of fraud and want of consideration stated in the petition, and to prove that the note was not then, and since the commencement of the action has not been, in his possession.
    The court found the allegations of the petition to be true, and by its decree canceled the note, enjoined the defendant from selling, transferring, or attempting to collect the same, and rendered judgment against the defendant for costs, to which the defendant excepted.
    
      John M. Lemmon, for the motion,
    contended, that the action was barred, and cited Code, sec. 15; 2 Cin. Sup. Ct. Rep. 528; Gates v. Andrews, 87 N. T. 657; Northwp v. Hill, 57 lb. 851; Pilcher v. Flynn, 30 Ind. 202; Fvans v. Bacon, 99 Mass. 213; 50 Mo. 445; Boyd v. Blanhnan, 29 Cal. 19.
    
      J. S. Green § Son, and J. B. Bartlett, contra,
    filed a brief,, but it is not now on file.
   Rex, J.

On tbe trial in tbe court below, as appears from tbe bill of exceptions, tbe plaintiff testified that he discovered the fraud, on the ground of which he seeks relief in the action, in February or March, 1867, which was more than four years before the commencement of this .action.

It also appeal’s from the bill of exceptions that, after the testimony was closed, the defendant asked the court to hold “that the limitation of four years in the fourth clause of section 15 of the code of civil procedure applies to this ease, and bars the plaintiff’s action, if the court find that the plaintiff’s cause of action accrued more than four years before he commenced this action,” which the court refused to do, and to which the defendant excepted.

The fourth clause of section 15 of the code limits the period within which an action can be commenced for relief on the ground of fraud to four years after the discovery of the fraud.

The-time within which the original action could be commenced'was limited by this provision of the code, and in refusing so to hold the District Court erred.

It is claimed, however, by the defendant in error, that the note in question, by reason of the fraud of the plaintiff' in error, was wholly without consideration, and, therefore, that, independent of the ground of fraud, he is entitled in equity to a decree of cancellation at any time before an action on the note is barred by the statute of limitations.

In our opinion, independent of the alleged fraud of the plaintiff’ in error, there was no cause of action stated in the petition below.

"Want of consideration merely is not a ground of equitable jurisdiction for tbe cancellation of a non-negotiable promissory note, either before or after its maturity.

Motion granted, judgment of the District Court reversed, and cause remanded.

Welch, C. J., White, Gilmore, and McIlvaine, JJ., concurred.  