Coolidge v. Alcock

30 N.H. 329

• Court: Superior Court of New Hampshire
• Decided: December 15, 1854
• Status: Published

Opinion

Woods, J.

The verdict must be set aside. Here was no concealment of the cause of action. It appears that in 1826, such facts and circumstances came to the knowledge of the person who was then the administrator of John AL cock, jr., as led him to investigate the question of the embezzlement which constitutes the ground of the present action. He had such information as to existence of the cause of action, as induced him to institute a legal inquiry for the purpose of establishing the fact. At the investigation it appeared that the property was taken by the defendant ; the taking was in fact admitted by him; and he justified the act of taking as a thing which he had a right to do. Upon the showing of the plaintiff himself, the cause of this action was not unknown to him, and of course it was not concealed by the defendant. It was not only known to him, but acted upon by him. The case shows most distinctly full knowledge of the cause of action, such as it was, and an unsuccessful attempt by the administrator to avail himself of it. In such a state of the case, the statute of limitations must have its ordinary operation. It is the want of knowledge on the part of the plaintiff, or the fraudulent concealment of the cause of action on the part of the defendant, which alone relieves against the statute bar. Here neither the one nor the other is shown. The want of sufficient competent evidence to establish the cause, when known to the plaintiff, cannot defeat the operation of the statute. Whatever may be the cause of action, even though it may arise out of a fraud practiced upon the plaintiff, yet, whenever the cause shall come to the knowledge of the party defrauded, there can be no doubt that the statute of limitations will run from that period, and that it will form a complete bar to the action, after the lapse of the period prescribed for commencing the action. The evidence to show an investigation into the merits of the present controversy in 1826, came from a witness of the plaintiff, and was not controverted. Upon the plaintiff’s own showing, then, the statute bar set up was a perfect defence to the action, and we see no reason why the defendant was not entitled to a verdict in his favor, by direction of the court, or to a nonsuit. The case showed no evidence of a concealment of the cause, but the contrary thereof.

It is not necessary to decide the other questions raised by the case and discussed at the bar. The verdict should clearly be set aside, and a

New trial granted.