Sanborn v. Gale

26 L.R.A. 864, 38 N.E. 710, 162 Mass. 412, 1894 Mass. LEXIS 92

Opinion

Allen, J.

The plaintiff’s cause of action was complete at the time when he discovered his wife in the act of adultery with the defendant; and, as this was more than six years before he brought suit, the action was barred by the statute of limitations, Pub. Sts. c. 197, § 1, cl. 4, unless saved by the provisions of § 14 as to a fraudulent concealment by the defendant of the cause of action. The wife’s confession in 1892 did not disclose any subsequent adultery, or any cause of action accruing at a later date; and if it would show that she, through the procurement of the defendant, had agreed to deny the facts, that is not the same thing as fraudulently concealing the cause of action. A cause of action cannot be said to be concealed from one who has a personal knowledge of the facts which create it, although he may have no other means of establishing his case than by his own testimony. See Nudd v. Hamblin, 8 Allen, 130; Jackson v. Buchanan, 59 Ind. 390.

Moreover, the confession was not competent against the defendant, because the plaintiff could not be allowed to testify as to a private conversation with his wife; Pub. Sts. c. 169, § 18, cl. 1; and also because the defendant would not be bound, and, could not be affected, by such a confession made in his absence. Pond v. Pond, 132 Mass. 219, 223. Exceptions overruled.