Page:Federal Reporter, 1st Series, Volume 8.djvu/789

SHELDON V. KEOKOK NOBTHEEN UNE PACKET 00. 775 �it seems to me, a manifest difference between ^he Eevieion oi 1858 aud the law previous to that date. What I have.said eitiout the case of Corning v. Stebbins seems to be applicable to <?aseB in 2 Denio and 3 Barb. Ch. supra. Assuming, then, that the present suit must have been eommenced within six years after the discovery .of the facts constituting the fraud charged, the important inquiry is whether it appears, from the face of the bill, to be barren. Many courts have held that such a defence could not be made by demurrer. But the doctrine is now settled otherwise. Story, Eq. PI. (9th Ed. by Gould,) § 484, note 1, and § 503, That this objection may be made by demurrer is the doctrine of the Wiseonsin supreme court, notwith- standing its statutes (1S58) declare that "the objection that the action was not eommenced within the time limited can only be taken by answer." Howell v. Hoxvell, 15 Wis. 59; Hydev,. Svpervisors, 43 Wis. 135. �The present action was eommenced June 3, 1879, and counsel for defendant contends that the cause of action must be deemed to have occurred Apnl 1, 1873, "on or about" which time, the bill states, not only the amount agreed to be contributed by the Northwestern Union Company to the Keokuk Northern Line Packet Company was delivered into the custody of the latter corporation, but the pretended sale of real estate to Davidson occurred. But the bill also shows that the agreement with the packet company contemplated an appraisement of the property to be transferred to it, and that it should be paid for in the stock of the new company, upon the basis of such appraisement. The bill further shows that the appraisement did not, in fact, take place until July, 1873; that the several bills of sale, from the North- western Union Packet Company to the Keokuk Northern Packet Line Company, were executed on divers days between March 31 and Octo- ber 31, 1873. How many of such bills of sale were executed before, and how many after, June 3, 1873, is not stated. The bill also shows that the stock was not delivered to the vendor corporation until some time in the year 1874. It is also alleged that the con- veyance of real estate to the defendant P. S. Davidson was not exe- cuted until August 19, 1873. Certainly, the transaction by which defendant Davidson secured the title to the real estate in La Crosse was not consummated until that conveyance was made. And it does not distinetly appear that the sales to tho Keokuk Northern Packet Line Company became irrevocable or were consummated prior to June 3, 1873. An instructive case upon this point is Muir v. The Trus- tees, etc., 3 Barb. Ch. 481, where Chancellor Walworth said: ��� �