Page:Federal Reporter, 1st Series, Volume 1.djvu/701

JOHNSTON r. aoB. ���693 ���the books of the bank showing payment thereof, though no part of said notes, or either of them, except interest up to that time, had been paid, and no payment thereon has been since made. This of course makes, if true, a clear case of indebtedness from said Eoe to the bank. The indebtedness, according to these allegations, aecraed as early as the four- teenth day of April, 1868. John J. Eoe died on the fourteenth day of February, 1870. His estate was administered upon under the laws of Missouri, and this claim was not proven before the probate court. Said estate has been fully admin- istered by the administrator, and the administration closed. Certain real and personal property left by the deceased having passed to the defendants herein, as his heirs, this suit is intended to subject the same to the payment of the plaintiff's demand, the bill for this purpose having been filed on the seventeenth day of June, 1879. �It wiil thus be seen that the cause of action accrued nearly two years before the death of John J. Eoe, and more than 10 years prior to the bringing of this suit, and is theref ore barred by the statute of limitations of Missouri, (if that statute is to be foUowed here,) unless the plaintifif has taken the case out of the statute by the allegations of his bill conceming the concealment of the alleged fraud and its discovery. Upon this point the bill alleges, in substance, that the fraud corn- plained of was concealed by the directors of the bank, (said John J. Eoe, up the time of his death, being one of them,) in collusion with the cashier, whereby the said national bank, and its stockholders and creditors, were kept in igno- rance of t,he facts untU July 10, 1877, when the fraud was diseovered by the complainant. It is further alleged that the claim here sued upon arises out of the breach of an express trust by the said John J. Eoe and his associates, and for that reason said statute of limitations does not alïect the com- plainant's right of recovery herein, and it is alleged generally "that, in consequence of said fraud, and the concealment thereof as aforesaid, the claim here sued upon is, in equity, excepted from the operation of the statute of limitations, in ��� �