ÜAYMOND, ’ PRESIDENT.
There seems to be some contradiction and confusion in the authorities, as to whether a Court of Equity has jurisdiction AAdiere fraudulent misrepresentation is -made which causes damage. It is said by Lord Eldon in Evans vs. Bicknell, 6 Ves., 174, to be a very old head of equity, that if a representation is made by one person to another going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good, if he kne.AV it to be false. The case of Pasley vs. Freeman, 3 T., R., 151, he thought, might haAre been maintained in equity, upon the principles of many decisions of that Court. About this doctrine Chancellor Kent said there can be no dispute. Bacon vs. Bronson, 7 Johns., Ch., R., 201. Yet it has been seriously questioned in the Supreme Court of the United States; and the opinion of that Court appears to be against the jurisdiction of equity in such case. Russell [176]*176vs. Clark’s ex’ors, &c., 7 Cranch, 69. See Robinson’s old Practice, 2d vol., 30. In the case of Lang vs. Lee, et als, 3d Rand., 410, it was held, that, “where one man recommends another to a third, as being worthy of trust, by which the person recommended obtains, a credit, the party recommending shall be answerable for any loss the other may sustain, in consequence of the credit, if he knew at the time, that the man for whom he vouched was not trustworthy.” This was a suit in chancery, but the suit was not brought or prosecuted to make the party liable, who practised the fraud. The suit was in fact brought by the party who had practised the fraud setting up a deed of trust, and claiming the benefit thereof, against parties for whose benefit another deed of trust had been executed; and the question now under consideration was considered by only two of the Judges, and it was not necessary to decide that equity would have jurisdiction in such a case, and I do not understand them so to decide. In the case of Poore vs. Price, 5th Leigh, page 52, (which was a case founded upon fraudulent misrepresentation, and damage,) it was held that a Court of Equity had jurisdiction, but in that case the plaintiff was induced by the fraudulent misrepresentation of the defendant to release a mortgage to defendant, a purchaser of the mortgaged subject; and the bill, among other things, prayed that the plaintiff be re-instated to the benefit of his mortgage lien. Under the peculiar circumstances of this case the plaintiff had not a complete remedy at law, and it was clearly proper for equity to entertain the bill to re-instate the mortgage lien. In the case of Russell vs. Clark’s ex’ors in 7th Cranch, page 89, Judge Marshall says, “on the question of'fraud the remedy at law is also complete, and no case is recollected where a Court of Equity has afforded relief for an injury sustained by the fraud of a person who is no party to a contract, induced by that fraud. It is true that if certain facts, essential to the merits of a claim, purely le[177]*177gal, be exclusively witbin the knowledge of the party against whom that claim is asserted, he may be required, in a Court of Chancery, to disclose these facts, and the Court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy. But this rule cannot be abused, by being employed as a mere pretext for bringing causes into a Court of Equity proper for a Court of law.”
“ The most general description of a Court of Equity is, that it has jurisdiction in cases where a plain, adequate^ and complete remedy cannot be had at law.” Bobinson’s old Practice, 2 Yol., page 1.
It seems to me doubtful whether the- Plaintiff has the right to be entertained in equity upon his case as stated in his bill, upon the supposition that the case made by the bill amounts to a fraudulent misrepresentation-causing damage. It seems clear that in such case the party injured has his remedy at law, and that the remedy is plain and complete. “Fraud without damage, or damage without fraud, gives no cause of action, but where these two do concur, there, an action lieth.” — Per Croke J., 3 Bulstr., 95.
But if it be admitted that equity has jurisdiction of causes of action founded in deceit, and fraudulent misrepresentation whereby damage is incurred, still, I think Plaintiff’s bill fails in its allegations to make a case for the’exercise of that jurisdiction. It fails to allege, that at the time of the insurance by Patrick Beirne, “the loan to John McAneany & Co., was not perfectly safe, and that Patrick Beirne at the - time of the making the assurance knew that the firm was not safe, and that the assurances of Beirne in the bill stated, were false at the time they were made, and that Beirne knew them to be false.” Fraud or fraudulent intent in Beirne in making the assurance, is no where alleged; and the facts are not stated with sufficient distinctness and precision to enable [178]*178the Court to determine the true nature and extent of the assurance, and the effect that should be given to it as a fraud or estoppel. The time the assurance was made, and the circumstances under which it was made are not stated. It is true the bill alleges, that in 1868, nine years after the transaction, the firm of John McAneany & Co., and the members thereof were insolvent and bankrupt, but their condition at the time of the assurance or loans is left to conjecture.
“ Every estoppel,” says Lord Coke, “ because it concluded a man to allege the truth, must be certain to every intent, and uot to be taken by argument or inference.” (Co., Litt., 352, b.)
Patrick Beirne in his answer denies all the material allegations of the bill, and pleads that the cause of action (if any ever existed, which he denies) accrued more than five years before the institution of the suit. Andrew Beirne filed his answer averring, that there should be further credits on the debt, &c. The other Defendants failed to answer.
To each of the answers the Plaintiff filed a special replication. The replication to the answer of Patrick Beirne says: “ the Plaintiff did bring and prosecute his suit in this behalf within five years from the time of the Defendant’s liability to be sued; and notice to the Plaintiff that Defendant P. Beirne had not transferred his interest in the firm of Beirne, Duffy & Co., in Nicholas county, to the Defendant, Andrew Beirne, and the other statements in the answer', are denied. It is claimed by the counsel of P. Beirne that the statute of limitations is well pleaded, and that the replication is not sufficient to prevent the statute from running from the time of the alleged loans, and assurances — that if the replication amounts to anything it is only a general replication, or is immaterial. The case of Rice vs. White, 4 Leigh 474, is cited to support this view. I don’t think, under the allegations of the Plaintiff’s bill, the replication is [179]*179sufficient to prevent the statute of limitations from running against Plaintiff’s claim; nor do I think the replication would be sufficient for that purpose in any case.
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ÜAYMOND, ’ PRESIDENT.
There seems to be some contradiction and confusion in the authorities, as to whether a Court of Equity has jurisdiction AAdiere fraudulent misrepresentation is -made which causes damage. It is said by Lord Eldon in Evans vs. Bicknell, 6 Ves., 174, to be a very old head of equity, that if a representation is made by one person to another going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good, if he kne.AV it to be false. The case of Pasley vs. Freeman, 3 T., R., 151, he thought, might haAre been maintained in equity, upon the principles of many decisions of that Court. About this doctrine Chancellor Kent said there can be no dispute. Bacon vs. Bronson, 7 Johns., Ch., R., 201. Yet it has been seriously questioned in the Supreme Court of the United States; and the opinion of that Court appears to be against the jurisdiction of equity in such case. Russell [176]*176vs. Clark’s ex’ors, &c., 7 Cranch, 69. See Robinson’s old Practice, 2d vol., 30. In the case of Lang vs. Lee, et als, 3d Rand., 410, it was held, that, “where one man recommends another to a third, as being worthy of trust, by which the person recommended obtains, a credit, the party recommending shall be answerable for any loss the other may sustain, in consequence of the credit, if he knew at the time, that the man for whom he vouched was not trustworthy.” This was a suit in chancery, but the suit was not brought or prosecuted to make the party liable, who practised the fraud. The suit was in fact brought by the party who had practised the fraud setting up a deed of trust, and claiming the benefit thereof, against parties for whose benefit another deed of trust had been executed; and the question now under consideration was considered by only two of the Judges, and it was not necessary to decide that equity would have jurisdiction in such a case, and I do not understand them so to decide. In the case of Poore vs. Price, 5th Leigh, page 52, (which was a case founded upon fraudulent misrepresentation, and damage,) it was held that a Court of Equity had jurisdiction, but in that case the plaintiff was induced by the fraudulent misrepresentation of the defendant to release a mortgage to defendant, a purchaser of the mortgaged subject; and the bill, among other things, prayed that the plaintiff be re-instated to the benefit of his mortgage lien. Under the peculiar circumstances of this case the plaintiff had not a complete remedy at law, and it was clearly proper for equity to entertain the bill to re-instate the mortgage lien. In the case of Russell vs. Clark’s ex’ors in 7th Cranch, page 89, Judge Marshall says, “on the question of'fraud the remedy at law is also complete, and no case is recollected where a Court of Equity has afforded relief for an injury sustained by the fraud of a person who is no party to a contract, induced by that fraud. It is true that if certain facts, essential to the merits of a claim, purely le[177]*177gal, be exclusively witbin the knowledge of the party against whom that claim is asserted, he may be required, in a Court of Chancery, to disclose these facts, and the Court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy. But this rule cannot be abused, by being employed as a mere pretext for bringing causes into a Court of Equity proper for a Court of law.”
“ The most general description of a Court of Equity is, that it has jurisdiction in cases where a plain, adequate^ and complete remedy cannot be had at law.” Bobinson’s old Practice, 2 Yol., page 1.
It seems to me doubtful whether the- Plaintiff has the right to be entertained in equity upon his case as stated in his bill, upon the supposition that the case made by the bill amounts to a fraudulent misrepresentation-causing damage. It seems clear that in such case the party injured has his remedy at law, and that the remedy is plain and complete. “Fraud without damage, or damage without fraud, gives no cause of action, but where these two do concur, there, an action lieth.” — Per Croke J., 3 Bulstr., 95.
But if it be admitted that equity has jurisdiction of causes of action founded in deceit, and fraudulent misrepresentation whereby damage is incurred, still, I think Plaintiff’s bill fails in its allegations to make a case for the’exercise of that jurisdiction. It fails to allege, that at the time of the insurance by Patrick Beirne, “the loan to John McAneany & Co., was not perfectly safe, and that Patrick Beirne at the - time of the making the assurance knew that the firm was not safe, and that the assurances of Beirne in the bill stated, were false at the time they were made, and that Beirne knew them to be false.” Fraud or fraudulent intent in Beirne in making the assurance, is no where alleged; and the facts are not stated with sufficient distinctness and precision to enable [178]*178the Court to determine the true nature and extent of the assurance, and the effect that should be given to it as a fraud or estoppel. The time the assurance was made, and the circumstances under which it was made are not stated. It is true the bill alleges, that in 1868, nine years after the transaction, the firm of John McAneany & Co., and the members thereof were insolvent and bankrupt, but their condition at the time of the assurance or loans is left to conjecture.
“ Every estoppel,” says Lord Coke, “ because it concluded a man to allege the truth, must be certain to every intent, and uot to be taken by argument or inference.” (Co., Litt., 352, b.)
Patrick Beirne in his answer denies all the material allegations of the bill, and pleads that the cause of action (if any ever existed, which he denies) accrued more than five years before the institution of the suit. Andrew Beirne filed his answer averring, that there should be further credits on the debt, &c. The other Defendants failed to answer.
To each of the answers the Plaintiff filed a special replication. The replication to the answer of Patrick Beirne says: “ the Plaintiff did bring and prosecute his suit in this behalf within five years from the time of the Defendant’s liability to be sued; and notice to the Plaintiff that Defendant P. Beirne had not transferred his interest in the firm of Beirne, Duffy & Co., in Nicholas county, to the Defendant, Andrew Beirne, and the other statements in the answer', are denied. It is claimed by the counsel of P. Beirne that the statute of limitations is well pleaded, and that the replication is not sufficient to prevent the statute from running from the time of the alleged loans, and assurances — that if the replication amounts to anything it is only a general replication, or is immaterial. The case of Rice vs. White, 4 Leigh 474, is cited to support this view. I don’t think, under the allegations of the Plaintiff’s bill, the replication is [179]*179sufficient to prevent the statute of limitations from running against Plaintiff’s claim; nor do I think the replication would be sufficient for that purpose in any case. What will prevent the statute of limitations from running against a cause of action ? The 18th section, page 550 of Chapter 104 of the Code, in which the statute of limitations applicable to this case is found, provides, that if the person against whom the right of action exists shall obstruct the prosecution of such right by absconding or concealing himself, or by any other indirect ways or means obstruct the prosecution of such right, the time such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. In ■ the case of Callis vs. Waddy, 2 Munford, Rep. 511, it was decided that in an action on- the case for a deceit, if the Defendant plead that the cause of action did not accrue in Jive years next before suing out the writ, a replication that the fraud came to the Plaintiff’s knowledge within that time is not good. But where Plaintiff replied, that the cause of action was fraudulently concealed by Defendant from Plaintiff until within live years next before action brought, it was good. Such replication held good in Massachusetts, New Hampshire, Pennsylvania and Maine. See 1 Robinson’s Old Practice, 85 and 86. I think where it properly appears by the pleadings that the facts on which the cause of action was founded, were exclusively in the knowledge of the - Defendant; that he fraudulently concealed these facts; and that by such ways and means he defeated and obstructed the Plaintiff from bringing his action within the time limited, the effect of the statute may be avoided in actions at law as well as in suits in equity. — Rob. Old Prac. 1 vol. 110. I do not mean to be understood as saying that no other averments will avoid the effect of , the statute, except such as I have stated. The counsel for the Appellee, relied in argument upon the case of [180]*180Rice vs. White already cited. In that case it is said, • “ It seems that if the fraud was not discovered till some-af¡;er ^ was practised, and within the time of lim-Nation, this would suffice to take the case out of the statute; but-to enable the-Plaintiff to avail himself of such matter, he must plead it specially in his replication.” This was an action at law. It was held in this case that the statute commenced running from the time the deceit was practised. It is not clear that a special replication to an answer setting up the statute of limitations is proper at this day in suits in equity. Some of the most approved authors upon Equity Pleadings maintain that special replications to answers have gone into disuse, and are not now recognized. Cooper, in his work on Equity Pleading, pages 329 and 330, says, “ Formerly replications were either general or special, as they still are at law. A general replication, which alone is now used in equity, is a general denial of the truth of the Defendant's plea -or answer, and of the sufficiency of the matter alleged in it, to bar the Plaintiff's suit, and an assertion of the truth and sufficiency of the bill. A special replication was occasioned by the Defendant's introducing new matter into his plea or answer, which made it necessary for the Plaintiff to put in issue some additional fact on his part, in avoidance of such new matter introduced by the Defendant. These it seems were in use in Lord Nottingham's time. . The consequence of a special replication was a rejoinder, by which the Defendant asserted the truth and sufficiency ■of his answer, and traversed every material part of the replication; and if the parties were not then at issue, by reason- of some new matter disclosed in the rejoinder, which required answer, the Plaintiff might file a sur-rejoinder, to which the Defendant in his turn might put in a rebutter; and pleadings in ancient times in this manner frequently proceeded to a sur-rejoinder, and re-butter. But the inconvenience, expense, and delay of [181]*181these proceedings, occasioned an alteration of the practice. Special replications have gone quite out of use, so that if any material charge is omitted in the bill, although it is alleged by way of replication, it is not pertinent, nor shall it affect the Defendant. In the room of special replications, amendments of the bill have been substituted, and the Plaintiff must now be always relieved according to the form and matter, either originally or by amendment, contained in his bill. To the matter thus introduced by the Plaintiff, the Defendant puts in a further answer, whether required by the Plaintiff to do so or not, and thus he has the advantage and effect of a special rejoinder.” Mitford, in his Pleadings, on pages 321 and 322 asserts the same practice, and Story in his Equity Pleadings, section 848, does likewise. See also 2nd Vol. of Robinson’s old practice, page 315, under the head of “ Replication to answer.” See also the opinions of Judges Spencer and: Kent, in the case of William James against John 'M. Kenan, adm’r., <&c., in 6th Johnson’s Reports, by William Johnson, commencing on side page 543. It is true that 4he 35th section of Chapter 125 of the.present Code of laws of this State, provides for the filing of a special replication in a suit in equity, where the. Defendant, in his answer, alleges new matter constituting- a claim for affimative .relief. This only applies where, the answer sets up new matter of affirmative relief for which a cross bill might'be filed, and • does not affect the general rule in other cases. If the Plaintiff, on the filing of P. Beirne’s answer had obtained leave to amend his bill, and filed an amended bill, alleging the fraud, ¿sc., as already indicated, if the facts would permit; and containing such averments as would avoid the effect of the statute, he might have succeeded in this cause if the proof was sufficient. While I do not say that a special replication to an answer will be allowed in no case except that provided for in the Code,, still I think as a general rule the practice in equity as [182]*182stated by the authors cited above is the better practice.
The decree rendered, from which the appeal is taken, is a personal decree against Patrick Beirne, and does not pursue his interest in the effects of Beirne, Duffy & Co., in .Nicholas county. The decree is, therefore, not in accordance with the claim and special prayer of the bill, but is evidently predicated upon a supposed fraud of the character of those cited in 3 Randolph, and in the case of Lang vs. Lee et als, and also in 6 Vesey, jr.. 182, and is made under the prayer for general relief. But those cases are not similar to the case made by the Plaintiff’s bill. If it be conceded that the bill and other pleadings are sufficient, and the statute of limitations be disregarded, still I think the decree appealed from is erroneous upon the merits of the case. The Plaintiff’s case, as to the material fact of the representation or assurance of P. Beirne alleged in the bill, is supported by his evidence alone. He says, in his deposition of 3d of May, 1870, that the conversation in which the misrepresentation or assurance was made, occurred in the Pall of 1858, at the store of MeAneany & Co., and it fully appears that the store of MeAneany & Co. was in the county of Nicholas. It appears that the two sums first loaned were loaned in February, 1859, and the last in May, 1860. Patrick Beirne, in his evidence, contradicts the evidence of Plaintiff throughout. He declares he was not in the county of Nicholas in the year 1858; that he did not know Plaintiff - and never had with Plaintiff the conversation to which he testifies; says positively that he was in the county of Nicholas in the year 1857, and but twice thereafter between that time and 1867, and then only for a short time on a visit, to-wit, once in October, 1859, and again in the month of September* 1860. Andrew Beirne contradicts the testimony given by Plaintiff in several material particulars, and corroborates that of P. Beirne. John MeAneany testifies that he borrowed the money from Plaintiff for the firm of [183]*183John McAneany & Co.; that it was loaned under the advice of Robert Dunlap, the counsel of Plaintiff; that Patrick Beirne was not present, nor did he come to Nicholas, where the money was loaned, for some time thereafter; that Patrick Beirne knew nothing about it. Plaintiff testifies that McAneany, after he (Plaintiff) had refused to loan the money two or three times to him and Andrew Beirne, called him to the store, where Patrick Beirne introduced the subject again, and requested him to loan the money to the firm of McAneany & Co., and said they were perfectly good, &c. This, the testimony of McAneany substantially contradicts. McAneany produces a receipt of Plaintiff for $150, the price of a horse, which contradicts the testimony given by Plaintiff as to said $150, and where it was to be credited. While the material fact in issue is testified to alone by Plaintiff, it is contradicted by Patrick Beirne, who is corroborated to a great extent by McAneany and Andrew Beirne. True, the Plaintiff has taken the depositions of several witnesses, but they fail to testify as to the material fact in the case, to-wit, the assurance, &c., alleged to have been made to Plaintiff. They are introduced chiefly to contradict Patrick Beirne as to declarations made to them at different times, when Plaintiff was not present. None of these depositions, however, prove that Patrick Beirne made to Plaintiff the assurance alleged in the bill, which is the material fact in issue, or that Patrick Beirne ever had any conversation with Plaintiff, or in his presence, on any subject. The weight of evidence as to the material facts alleged by the Plaintiff is against him, and against his alleged cause of action against Patrick Beirne. Where actual fraud is relied on as a ground of recovery, it should be clearly proved.
Por these reasons the decree of the Circuit Court of Nicholas county, rendered in this cause on the 9th day of November, 1871, must be reversed, with costs to the Appellant in this Court; and this Court proceeding to [184]*184render sucb decree as said Circuit-Court ought to bare rendered, the Plaintiff’s bill must be dismissed, and he pay the Defendant, Patrick Beirne, his costs incurred about his defence of this cause in said Circuit Court.
Paull and Moore, Judges, concur in the foregoing opinion.'