Page:Federal Reporter, 1st Series, Volume 8.djvu/790

776 FEDERAL REPORTER. �" It may be proper to say, however, that although it is allcged in Ihe bill that the executors of Leake obtained possession o£ his property, etc., in or about the year 1830, it does not distinctly appear that it was more than 10 years before the flling of the complainant's bill. And to enable a defendant to take advantage of the statute of limitations upon demurrer, it must dis- tinctly appear, by the bill itself, that the complainant's remedy is barred by the lapse of time." �Aside, however, from this view, I am of opinion that it does not, in the sense of the authorities, appear upon the face of the bill that the suit is barred by the limitation of six years, unless it be true (which cannot be conceded) that the failure of complainants to allege that the frauds complained of were discovered within six years before suit, is as false to their suit as if they had admitted, on the face of the bill, in terms, that the frauds were discovered more than six years before the commencement of the suit. This position rests, I suppose, upon the general statement in some of the books that demurrer will lie where the bill shows, upon its face, that the suit is barred. The cases cited in the books, in support of the general rule, show that defendants' counsel misinterpreted the rule. For instance, in Hoare V. FecU, 6 Sim. 51, it appeared on the face of the bill, not ouly when the fraud occurred, but when it was discovered by complainants. So in Horenden v. Lord Amerley, 2 Scho. & Lef. 636, it appeared, upon the face of the bill, that the fraud was discovered nearly 60 years before suit. So in Poster v. Hodgson, 19 Ves. 182, it appeared on the bill that the fraud charged had occurred 12 years after the com- plainant might have discovered it, with very slight diligence. �Since the statute declares that the cause of action shall not be deemed to have occurred until the discovery of the facts eonstituting the fraud chargod, and since the utmost which defendants can claim is that the bill shows the fraud to have been committed more than six years before the commencement of the suit, it cannot be said to be apparent from the bill that six years passed after the fraud was discovered — that is, after the right of action accrued — before suit. A demurrer, therefore, does not meet the objection here urged. And such is the construction of a somewhat similar statutory provision by the courts of New York. In Radcliff v. Rowley, 2 Barb. Ch. 31-2, the court gave a construction to the provision which declares that "bills for relief, on the ground of fraud, shall be filed within six years after the discovery, by the aggrieved party, of the facts eonstituting such fraud, and not after that time." Chancellor Walworth said; ��� �