§ 1426. This statute cannot be set up as a bar to an action at law or in equity by a defendant who has been guilty of fraud unknown by the plaintiff at any time within the six years.3 But it must not only be alleged and proved that the right of action was unknown to the plaintiff, but also that it was fraudulently concealed by the defendant from the knowledge of the plaintiff.1 For if there be no evidence of fraud practised by the defendant in order to prevent the plaintiff from obtaining knowledge of that which had been done, mere want of knowledge would not take the case out of the statute.2 After the lapse of six years from the discovery of the fraud, the statute would, however, apply.3
1 Hemp v. Garland, 4 Q. B. 519; Helps v. Winterbottom, 2 B. & Ad. 431; Cooke v. Whorwood, 2 Saund. 337.
2 The City v. Lamson, 9 Wall. 478 (1869).
3 See Sherwood v. Sutton, 5 Mason, 146, containing an examination of all the leading cases. Conyers v. Kenan, 4 Ga. 308; Persons v. Jones, 12 Ib. 371; Booth v. Lord Warrington, 4 Bro. P. C. 163; Hovenden v. Lord Annesley, 2 Sch. & L. 607; Western v. Cartwright, Select Cases in Ch. 34; 2 Eq. Abr. 10, pl. 11; South Sea Co. v. Wymondsell, 8 P. Wms. 143; Bree v. Holbech, 2 Doug. 655; Short v. M'Carthy, 8 B. & Ald. 626; Clark v. Hougham, 2 B. & C. 149. This doctrine is also supported by most of the American cases, and confirmed by statute in Massachusetts. Rev. Stat. ch. 120, § 12; Homer v. Fish, 1 Pick. 435; Welles v. Fish, 3 Ib. 74. So, also, the same doctrine is held in Maine, upon proof of actual fraud. Cole v. M'Glathry, 9 Greenl. 131; Bishop v. Little, 3 Ib. 405; Thurston v. Lowder, 40 Me. 198. In New York, however, the rule only applies in equity and not in law. Troup v. Smith, 20 Johns. 33; Oothout v. Thompson, Ib. 277. So, also, in South Carolina and Virginia the same rule is held as that in New York, Miles v. Berry, 1 Hill (S. C), 296; Hamilton v. Shepperd, 3 Murph. 115; Callis v. Waddy, 2 Munf. 511. Such is the rule in Vermont, Smith v. Bishop, 9 Vt. 110. In Ohio, Foe P. Fee, 10 Ohio, 469. In England, Imperial Gas Light Co. v. London Gas Light Co., 10 Exch. 39; 26 Eng. Law & Eq. 425, and Bennett's note. In Texas, Lewis v. Houston, 11 Tex. 642. The better-founded opinion, both in principle and equity, however, seems to be that stated in the text. See, also, Moore v. Greene, 19 How. 69 (1856); Meader v. Norton, 11 Wall. 443 (1870).
§ 1427. The operation of this statute may, also, be frustrated by an express acknowledgment of the present4 existence of the debt, or by a new promise to pay it. This promise or acknowledgment is considered as a new promise, founded upon the previous debt as a consideration, and must be sufficient in itself to support an action for the debt independent of the original promise.5 The acknowledgment is to be considered, not as a revival of the original agreement, but as evidence of a new and distinct agreement in itself. And if the new promise is conditional or contingent, the creditor must prove that the event has happened on which the promise depends.6
§ 1428. A taint of dishonor was formerly considered to attach to a party offering the Statute of Limitations as a defence to his liability in a contract; and the courts held that any acknowledgment of the debt, however slight, was sufficient to take the case out of the statute.1 But in the later decisions a different view has been taken of the statute, and the construction of it has been at once far more natural, and more favorable to the party pleading it.2 It is now well
1 Sherwood v. Sutton, 5 Mason, 7, 159, and cases therein commented on. See, also, Nudd v. Hamblin, 8 Allen, 130. .
2 Granger v. George, 5 B. & C. 149; Clark v. Hougham, 2 Ib. 149; First Mass. Turnpike Corp. v. Field, 3 Mass. 201; Welles v. Fish, 3 Pick. 71; Bishop v. Little, 3 Greenl. 405; McKown v. Whitmore, 31 Me. 418; Sherwood v. Sutton, 5 Mason, 146.
3 Brooksbank v. Smith, 2 Y. & C. 58; 2 Story, Eq. Jur. § 1521 a, note; Farnam v. Brooks, 9 Pick. 212; Cole v. M'Glathry, 9 Greenl. 131; Homer v. Fish, 1 Pick. 435; Battley v. Faulkner, 3 B. & Ald. 288; Hovenden v. Lord Annesley, 2 Sch. & L. 631; Granger v. George, 5 B. & C. 149; Sherwood v. Sutton, 5 Mason, 1; s. c. Ib. 113.
4 Bell v. Morrison, 1 Pet. 351, 360; Sands v. Gelston, 15 Johns. 511.
5 See Hell v. Morrison, 1 Pet. 360, and other cases there cited; Hart v. Prendergast, 11 M & W. 741; Smith v. Thorne, 18 Q. B. 131; 10 Eng. Law & Eq. 391; Cawley v. Furnell, 12 C B. 291; 6 Eng. Law & Eq. 397; Williams v. Griffith, 3 Exch. 335; Angell on Limitations, ch. 20.
6 Bidwell v. Rogers, 10 Allen, 438; Miles v. Linnell, 97 Mass. 301 (1867). And see Buckmaster v. Russell, 10 C. B. (n. s.) 745 (1861); Sweet v. Franklin, 7 R. I. 355 (1863).
1 Lord Mansfield, in Trueman v. Fenton, 2 Cowp. 548; Richardson v. Fen, Lofft, 86; Lloyd v. Maund, 2 T. R. 760; Bryan v. Horseman, 4 East, 599; Leaper v. Tatton, 16 Ib. 420; Clark v. Hougham, 2 B. & C. 154; Mountstephen v. Brooke, 3 B. & Ald. 141.
2 In Bell v. Morrison, 1 Pet. 360, Mr. Justice Story says: "It has often been matter of regret in modern times that, in the construction of the Statute of Limitations, the decisions bad not proceeded upon principles better adapted to carry into effect the real objects of the statute; that instead of being viewed in an unfavorable light, as an unjust and discreditable defence, it had received such support as would have made it what it was intended to be, emphatically, a Statute of Repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of the witnesses. It has a manifest tendency to produce speedy settlements of accounts, and to suppress those prejudices which may rise up at a distance of time, and baffle every honest effort to counteract or overcome them. Parol evidence may be offered of confessions (a species of evidence which, it has been often observed, it is hard to disprove and easy to fabricate) applicable to such remote times as may leave no means to trace the nature, extent, or origin of the claim, and thus open the way to the most oppressive charges. If we proceed one step further, and admit that loose and general expressions, from which a probable or possible inference may be deduced of the acknowledgment of a debt by a court or jury; that, as the language of some cases has been, any acknowledgment, however slight, or any statement not amounting to a denial of the debt; that any admission of the existence of an unsettled account, without any specification of amount or balance, and however indeterminate and casual, are yet sufficient to take the case out of the Statute of Limitations, and to let in evidence aliunde to establish any debt, however large, and at whatever distance of time, it is easy to perceive that the wholesome objects of the statute must be in a great measure defective, and the statute virtually repealed.