Radcliff v. Rowley

6 Sarat. Ch. Sent. 44, 1846 N.Y. LEXIS 242

Opinion

ApPeal from an order overruling a demurer to hill The chancellor decided that in a hill for relief on the ground of.fraud it is not necessary that the complainant should allege that he has dis-covere<^ ^16 fr’^d complained of, within six years. That a de-muref will not lie to such a bill, although it appears the fraud occurred more than six years before the commencement of the suit, unless it also appears by necessary intendment that the fraud was discovered by the party aggrieved more than six years before he filed his bill for relief. That where that does not appear, the de-fendaut must be left to make his defence by plea or answer, so as to present an affirmative issue, to be tried, upon the question of the discovery of the fraud.

® £e 0 When a special ^demurer neces‘

Upon a general demurer to a bill of the nature above mentioned, the chancellor held it to be unnecesary to inquire whether there were noisome grounds for relief stated in the bill, of a recent" date, which could not be barred by the statute of limitations. Nor whether some groun Is of relief stated in the bill did not appear upon the face thereof to be barred by lapse of time. And he decided that if that question is sought to be raised, on demurer, it must be done by separate demurer to that particular part of the bill.

Decretal order appealed from affirmed with costs; and proceedings remitted.