
    
      G. Clarke vs. Oswell Reeder. Thomas Lyles vs. Same—Other Plaintiffs vs. Same.
    
    In an action of trover for the conversion of cotton, the defendant pleaded the Statute of Limitations, to which the plaintiff replied fraudulent conversion and fraudulent concealment by defendant, and undiscovered by the plaintiff, until a time, within four years before the commencement of the suit. Replication overruled and plea sustained.
    
      Before Wardlaw, J., at Charleston, May Term, 1842.
    Trover for cotton. Second count alleging delivery of cotton to carrier — embezzlement by him and sale to defendant, he — knowing, <fcc.
    First plea, Non cal. Second plea, Statute of Limitations. Replication — fraudulent conversion — fraudulently concealed and undiscovered till within four years. Demurrer and joinder. Demurrer sustained.
    The plaintiffs appealed, and now moved the Court of Appeals to reverse the judgment of his Honor, sustaining the demurrer of the defendant, on the grounds following:
    
    1. That a fraudulent conversion of property by a defendant, and a fraudulent concealment of such conversion by him, by reason of which concealment, the plaintiffs were prevented from discovering such conversion until within four years prior to the suit, is a good reply to a plea of the Statute of Limitations in an action ex delicto.
    
    2. Because the statute only runs from the discovery of the fraud.
    3. Because the facts stated in the first ground, being admitted by the defendant’s demurrer, it is respectfully submitted, the judgment of the court should have been for the plaintiffs.
    J. B. Thompson, for the motion,
    cited 2 McCord 426; 4 Burr. 476; 3 Mass. Rep. 201; I Hill 298 ; 2 Harr. Dig. 1458 ; 1 Pick. 435; 2 Leigh N. P. 1242 ; Comyn on Contracts, 80; Chitty on Contracts, 634; 1 Story’s En. 502: 1 McC. Ch. Rep 314.
    B. F. Hunt, contra.
    The brief and report present the important question, whether to a plea of the Statute of Limitations, it is a good replication to aver that the cause of action was fraudulently concealed, and that the action was instituted within four years after the discovery of the fraud. It is important in discussing this, subject that the propositions should be precisely stated. The decisions have, in most cases, rested upon distinctions which appear at first sight plausible, but which will not stand the test of logical scrutiny, and the cases contain some very loose and ill-considered expressions of the Judges, which tend very much to lessen the authority of the adjudications, and can be accounted for by the general repugnance with which the Statute of Limitations was received by the bench and the bar. A repugnance which only affords another instance of the self-complacency of men who mingle little with the actual business of life, and are employed in discussion of abstract principles. Judges think that in most cases, they are better able to do justice than juries, and men of narrow comprehension are constantly finding fault with our jurisprudence, and declaring their preference for the institutions of the civil law, where the Judge decides both the fact and the law, and applies them to the matter in litigation. But we have only to compare, those countries where the institution of juries has continued long enough to produce its effect upon society, to determine, that a recurrence to the great fountain of common sense and true equity, the people is absolutely indispensable to correct the really crude and unphilosophical notions of men, who, being aloof from the body of the people, do not receive from them that infusion of practical wisdom which resides in the great mass of mankind.
    The Statute of Limitations is founded in a deep and accurate knowledge of the springs and motions of human actions, and after encountering for a series of years, the constant frowns of the court, is now, by the irresistible force of public opinion, claiming and receiving from the bench the obedience which is due to it, as the expressed will of the people. There never was a good ground for the opposition which it has encountered. Rightly considered, it-does no more than restrict men to a limited period, within which, the law will afford them the aid of its coercive power to enforce their contracts. It is in truth, a law which affects the remedy and not the contract — it is a law of the forum, and when successfully pleaded, still leaves the parties to settle their controversies according to the dictates of conscience and equity. The affording to parties a legal remedy to compel the performance of contracts, and giving a remedy for injuries inflicted, is but a substitute for the dictates of conscience and duty, and there is no good reason why parties should not be restricted to a limited period, within which, to apply this- compulsory process. All civilized people have, in one way or other, adopted statutes of limitations, and we generally find that what is universally adopted by nations as a rule of action, is founded upon the true nature and fixed principles of that policy which is best adapted to all mankind. The reasons on which this limitation of compulsory remedies depend, will be recognized as soon as stated. Debts are contracted with a view to the immediate means of payment; but if the creditor delays to demand them until new obligations arise, and a change of circumstances renders it impracticable, without doing great injustice to others, to give a creditor, who has thus lulled his debtor into security, a command over his person and estate, it is but right that the debtor should have the power to dispense equal justice to all who have demands against him, according to his own estimate of what is right. Were it not so, a creditor who had laid by for twenty years, might capriciously determine to press his claim to judgment, and thus get the power to control the property, or imprison the person of his debtor, to the utter ruin of subsequent creditors, who were unwilling to resort to similar measures. We have, in claims against the State and between States, an example of obligations existing, and being ultimately discharged, without a iesort to compulsory process. But the courts have acted on the presumption, that individuals have no consciences, at least, none but themselves, and that the moment the compulsory remedy is gone, there is no hope of justice. There is, at least, a complacency in all this, which only exemplifies the self-righteousness, which is apt to beset men who are long accustomed to sit in high places. Men in the ordinary walks of life, may have consciences as sensitive, and be actuated by principles of honor, as acute as either States and Empires, or even, the Ministers of Justice themselves; and the mandate of public opinion is now teaching those who administer the law to do so, as it is written, and no longer tax their imaginations to devise ways and means to exempt from their operation those who are fairly included in their literal provisions. The instances in which the most equivocal expressions were construed to take cases out of the statute, are mostly examples of either actual perjury, or gross misinterpretations of the language used ; and it was well said, that if one intends not to take a case out of the statute, by an admission, his only safe way is, to knock the creditor down the moment he asks payment,” for even a civil answer will be tortured into an acknowledgement. The courts have, at last, got to this point.— That when the time of the statute has run out, there must be a distinct admission of the debt, and as distinct a promise to pay it, and this is supposed to be giving the statute a full effect. But here, again, we encounter that propensity in Judges to be wiser than the law. In most cases, the law requires a consideration, aye, and a valuable consideration, to support an action; either the party must part with value or suffer loss, or he cannot compel the performance of a promise ; it rests in the conscience of the promisor where there is no consideration. That is, compulsion to recover what belongs to one — mere disappointment at not receiving a gratuity, is no cause of action, &c. However meritorious and moral the consideration of a promise, unless it is also valuable, the obligation to perform it rests in conscience only. Yet, in this instance, the decisions establish, that the moral -obligation to pay a debt, barred by the statute, is a sufficient consideration to support the action, and the promisor shall be compelled to perform it. Why one may not say, “ I admit your debt to be unpaid, and know you have no power to compel payment, as it is barred by the statute ; still I intend to pay it, and so I promise you, but I have other obligations, equally binding, and I must be the judge of the time and manner when I can do so consistently with other duties” — is not easily explained. If no new consideration passes, a promise to pay a debt barred by the statute, is but a moral, not a legal obligation; but it is something fixed, at least, that there must be a distinct neto promise.
    The cases in which the concealment, or alleged concealment, of the cause of action, has been construed to supersede the express words of the statute, have no foundation in sound sense or correct reasoning. Concealment of a cause of action, may be either passive or active, but it is manifest that if the action is brought on the original cause of action, then the time has elapsed since the action accrued, and the statute is positive “ within four years after such cause, of action accrued, and not after." To avoid this direct enactment, Judges say the concealment is the cause of action, and the discovery of .the fraud is the time when the action accrued. If the concealment is an overt act, it may be a cause of action, but if it is merely passive, merely an omission to discover, it would require an allegation of an obligation to disclose, and breach of that. An action of deceit might, perhaps, lie in some cases, but if the deceit consisted of some one overt act, and that was done more than four years before action brought, it would be barred itself as much as the original cause of action; and if it consisted in mere omission to give information, it is not perceived boyv that could be declared upon, or any consideration be averred. The case at bar is an illustration. A common carrier is alleged to have fraudulently unloaded his boat near Charleston, and carted the cotton into King-street, and there sold it; and it is charged that defendant, Reeder, bought it and converted it to his own use. This took place six years before action brought, and the defendant pleaded the statute of limitations, to which it was replied that Reeder has fraudulently concealed his conversion, and that the plaintiffs had brought the action within four years after the discovery; but still the action is trover for the conversion of the cotton, and there is no pretence that Reeder did any new act, since he bought the cotton and converted, which was more than four.years prior to suit brought. The concealment is alleged to be fraudulent, because it concealed a fraud. Is it not clear that the action accrued at the time of the conversion 1 and if that was a fraud, it was so then. Time, mere duration, is no cause of action separately from the act, unless a fraud -once committed, is being repeated until it is discovered, •and so has a continuing existence. The conclusive reply is, that the action accrues wheu the wrongful act is done, and having once existed, like every thing else, it begins to grow old; and at the end of four years, the time limited by the act has run out, and the prohibition is positive “four years, and not after."
    
    Another of the reasons on which the statute of limitations is founded, is the probable loss of testimony by lapse of time. Witnesses die, and documents are lost or consumed. This reason is not less powerful, when a fraud is charged, than when a debt is claimed.
    It is as difficult to preserve the testimony to repel a ■charge of fraud as any other'.allegation. Every trespass, conversion or non-payment, is easily converted into a fraud —and if such a reply is to repeal the statute, every breach of contract, and every trespass, would be called fraud, and the statute repealed by a mere change of a word.
    It is argued, that the demurrer admits the truth of the allegation of fraud. It is true, that although Mr. Reeder is a.respectable merchant, and eschews all such foul imputations; yet, to raise the question of law only, he permits the imputation, and in effect only says that he is not obliged to answer the charge. The rule that compels a party to admit a fact charged, before he is allowed to submit the question, whether, if true, it constitutes a good ground, in law, to support the claim of him who avers it, is not free from objection, and leads to a course of pleading that puts only the facts in issue, reserving the legal effect of the facts to the judgment of the court; and in this instance the allegation of fraud is only admitted for argument sake, so as to bring the question directly before the court, whether the neglect of the plaintiff to look after his cotton for four years, does not bar his claims. Fraud or no fraud, it is clear that no new act sufficient to constitute in itself a cause of action is pretended. The discovery of the fraud charged is the act of the plantiff, and cannot charge the defendant. No one can sue and allege his discovery as the cause of action. That existed long before, so that we are brought at last to the point, is the ignorance of the plaintiff a repeal of the law % It may be the result of supineness — “ Vigilantibus 
      
      non dormientibus subveniunt leges.” Where the concealment is the act of the defendant, as in the case of one who built a foundation, and covered it up, but so badly, that it caused the superstructure to give way, the defect was not discovered until the statute run out. A plausible ground was afforded for ruling that the statute commenced to run from the discovery of the fraud; but it is a most deceptive argument. The time might be ten or fifteen years, when all evidence of the actual defect is lost. It may have been caused by express direction of the plaintiff, or his predecessor, whose representative brings the suit. All the facts on which the imputation of fraud rests, may be more or less difficult of proof. In a word, the lapse of time renders it as difficult to defend one’s self from an old charge of fraud, as a stale demand of any other kind. All the reasons of quieting men’s estates, apply to these antiquated claims, founded upon allegations of fraud, so that they are within the reasons of the statute as clearly as they are within its direct words. If men wish to save themselves from concealed and deceitful impositions, they must look well to their contracts while in progress of execution, They must see for themselves, that the dirt hides no bad work, when all is new and the evidence in existence; they must “ watch as well as pray,” if they expect to avoid be-, ing deceived.
    As to the authorities : the leading case is that of Bree vs. ffolbeck, Doug. 654. The point was not ruled, it was ra-. ther a. hint thrown out by Lord Mansfield, whose propensity to adopt the equity rules in pleading was proverbial. The courts of equity did not feel bound by the terms of the statute of limitations, and they adopted the statute so far as they deemed it equitable, and as in their wisdom they held that it was not equitable that one who was guilty of' fraud should conceal it, and then plead the statute, they ruled that the statute run only from the discovery of the fraud ; thus, in fact, subjecting a party to be convicted by Stale testimony, both of fraud and concealment, when his rebutting testimony was lost, his vouchers perished.
    The case from Mass. Rep. vol. 3d, p. 201, was also a notion of Judge Parsons, also famous for his leaning tq equity rules,
    
      But the case in 20th Johnson Rep. 46, sustains the law as it is written, and refers to the case 2 Scholes and Lefroy, p. 634, for the explanation of the plausible, but really deceptive reasoning of the equity Judges on this subject. The only pretence is founded on the idea that the act of fraud is a continuing one until discovered. See cases 2d McCord’s Rep. 426; 4 Bacon Abr. 476 ; fraudulent concealment, 9 Eng. Com. Law Rep. 51; 1 Pickering, 435 ; 5 Mason, 143. But the true law is the letter of the statute; and if the real cause of action itself arose or accrued more than four years before suit; it is barred. “ Ita lex scripta est,”
    
   Curia, per

Wakdlaw, J.

Is the allegation of fraud in the conversion, fraudulently concealed by the defendant, and undiscovered by the plaintiff, until a time within four years before the commencement of the suit, a good replica-, tion to a plea of the statute of limitations % Our statute of limitations (2 Stat. 585,) requires an action of trover to be commenced within four years next after the cause of such, action, and not afterand it contains provisoes in favor of-infants, femes-covert, and persons beyond seas, imprisoned, or of unsound mind. To these express exceptions of the statute the court could not, without arrogating to itself a most dangerous power, add another exception in favor of those who, by the fraud of the party against whom the cause of action lies, have been kept from a knowledge of their rights. The plaintiff not being within any of the enumerated exceptions, the effect of the statute upon his case, is ascertained by determining when his cause of action arose. From that moment the statute began to run, and no subsequent fraud could arrest it as to the cause of action before arisen, even if such fraud should be in itself a new cause of action, subject to a new operation of the statute. The action here is trover, or case for embezzlement ; the cause of action is the conversion or embezzlement, or say the fraud, of defendant: by whatever name it may be called, the cause of action alleged in either count of the declaration, existed from the time the defendant converted the cotton to his use; and any subsequent concealment, however it might be regarded if itself presented -as a new cause of action, affected the plaintiff’s assertion, and proof of his rights, but did not at all affect the existence of his rights, or interpose any legal obstacle to their establishment.

In the case of Bree vs. Holbeck, Doug. 654, Lord Mansfield, whilst he decided that it was an insufficient replication to a plea of the statute of limitations, to allege the plaintiff’s ignorance of his rights until the commencement of the suit, without allegation that the defendant had been guilty of fraudulent concealment, said, “ there maybe cases which fraud will take out of the statute of limitations.” That dictum has been often repeated,' but has never yet produced any case in an English court of law, where the operation of the statute, upon a cause of action which existed, was arrested by proof of fraud. Various late English cases, such as Granger vs. George, 5 Barn. and Cres. 141, (11 E. C. L. R. 185;) Short vs. McCarthy, 3 Barn. and Ald. 626, (5 E. C. L. R. 403; Battley vs. Falkner, id. 288, (5 E. C. L. R. 288,) even more strongly than our case of Thomas vs. Fh'vin, Cheves, 22, enforce the doctrine held by Lord Mansfield, that the plaintiff’s ignorance will not of itself affect the statute; and the case of Brown vs. Howard, 2 Brad. and Bing. 72, (6 E. C. L. R. 25,) going still further, holds that the fraud of the defendant, added to the ignorance of the plaintiff, would not prevent the statute from barring the contract sued on,’ “ because.; though fraud is alleged, the gist of the action is not fraud, but a contract;” and although an intimation was given that the plaintiff might have another action on the fraud, which perhaps would not be barred, the verdict in his favor was set aside, the court of common pleas declaring that it could not set aside the express words of the statute.

In Massachusetts and Pennsylvania, cases have occurred where fraudulent concealment has been held to suspend the statute of limitations; (see 3 Mass. Rep. 201; 18 id. 435 ; 9 Pick. 244;) but in those States there is no court of equity, and the courts of law have naturally slid into the doctrine maintained by courts of equity, in applying to suits in equity the statute which, in its terms, does not embrace them, that where the statute ought not, in conscience, to run, it shall not avail the party whose conscience is affected. A careful examination of the subject was made by Ch. Justice Spencer, in New York, (Troup vs. Smith, 20 Johns. 32,) who, after a review of the authorities, declares 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 statute, we could not notice the fraud so as to take-the case out of the operation of the statute.” In our case of Harrell vs. Kelly, 2 McC. 426, the court refused to set aside a verdict found against a plea of the statute, and it is laid down that “ if the plaintiff prosecute his claim within four years from the time the fraud is discovered, the case is not barred but it will be seen that the result of that case may be well justified, upon the ground that no cause of action arose against the defendant before a demand.

A later case, Miles vs. Berry, 1 Hill, 296, sustains the position now assumed, that the original cause of action will be barred, and that the discovery. of fraud can be of no' consequence in respect to the statute, unless it be that the fraud is the gist of the action, and when it was discovered the cause of action arose. When the case may be presented, in which some distinct act of fraudulent concealment or artifice which prevented the plaintiff from discovering his rights, whereby a cause of action then existing was defeated, shall itself be alleged as the plaintiff’s cause of action, the sufficiency of such an allegation will be considered. At present we can only apply to the case as presented the plain words of the statute; and if we were permitted to speculate as to the expediency of adding to the exceptions of the statute, such a proviso as would justify the plaintiff’s replication, we might perhaps be brought to the conclusion that such an attempt to prevent the fraud of defendants, would produce great uncertainty, and in the end increase fraud, by the temptations it would offer for plaintiffs to evade the statute, by pretences and false testimony.

The motion to reverse the order of the circuit court is therefore refused.

Richardson, O’Neall, and Evans, JJ., concurred.  