#### *William Thrower*v. *Thomas K. Cureton.*

Columbia,

May, 1850.

The bill charged that, at a sheriff’s sale, the defendant, who controlled the executions under which the plaintiff’s land was sold, fraudulently stifled competition, by certain public declarations which he then and there made to the bystanders. The sale took place in February, 1842, and the bill to set it aside waá'filed on the 26th day of June, 1848. Defendant relied on the statute of limitations. The bill was dismissed on the ground of the statute, as well as on the merits. ,

Where the bill avers that the facts constituting the alleged fraud came to the plaintiff’s knowledge within four years before the filing of the bill, such an allegation is substantially an averment that the plaintiff was ignorant of them until that time; and I am of opinion, that such an averment throws the burden upon the defendant of proving that the plaintiff was acquainted with the facts for four years or upwards, before the bill was filed; otherwise, he is not entitled to the benefit of his plea of the *statute*— ob. *diet, per Johnston, Chancellor.*

*Before*Dunkin, Ch. *at Lancaster, June Sittings,*1849.

CIRCUIT DECREE.

Dunkin, Oh. In February, 1842, the complainant’s property, land and negroes, was under levy, by virtue of several executions in the sheriff’s office; a considerable portion of the amount due', was due to the defendant, and other executions were under his control. The negroes were first disposed of, and afterwards the lands. Two of the tracts of land were purchased by the defendant, one of two hundred and seventy-five acres, for eleven dollars, the other of fifty acres, for twelve and a half cents. The bill alleges that the former tract was worth two thousand dollars, and the latter was worth twenty dollars per acre, (being bottom land,) or one thousand dollars. The answer seems to admit that the two hundred and seventy-five acre tract was worth one dollar and a half per acre, but fixes no specific value on the latter. B. S. Massey said he was present at the sheriff’s sales in February, 1842; that he wanted the larger tract for his son, Leonidas, and made a bid ; defendant bid, and some conver*156sation took place; defendant said he was bidding to save himself, and the land must bring its value; witness, upon *‘*that, withdrew; the impression, left upon his mind was, that defendant would purchase and then settle with complainant according to his indebtedness, allowing him a fair price for the land; witness had thought or intended to bid two hundred dollars for the tract. The conversation between himself and the defendant was in the common tone of voice; others might have heard it. There was other testimony to the same effect, nor does it appear to the Court that there is any material discrepancy between the statements of the witnesses and the admissions of the defendant’s answer. Nor does the answer deny that, in one of the executions under the control of the defendant, he gave notice that, specie would be, demanded. Here, then, is the, fact that a tract of land was knocked down to the defendant for one-fiftieth part of its yalue, and for one,twentieth part of what another man, desirous of availing himself of tíre chances of the sale was willing to pay., and was only prevented from, bidding, by statements which left the impression on his mind, that in so doing, he would, prejudice the unfortunate debtor. I do not think the .particular language used is very important. The enquiry is, was it the intention of the party to deter competition ? Was that the natural effect of. his language and deportment?- And was the intended effect produced ? The case of *Fuller*v. *Abrams*is very similar to that before the Court, but I am prevented from pursuing further the examination of the evidence, and the consequences resulting from it, by the necessity of considering the plea in bar, which the defendant has interposed at the close of his answer. The sale took place in February, 1842, and this bill to set it aside was filed the 26th of June, 1848. The defendant relies on the statute of limitations. It has been repeatedly determined that, although, this statute does not, in terms, apply to the. proceedings of- the Court of Equity, yet these courts are affected by analogy. If the, party be guilty of such laches in prosecuting his equitable title as would bar him if his title were purely legal, he shall be barred in Equity. See *Bond*v. *Hopkins.*Where the object is to obtain relief against a secret fraud, the analogy only applies from the discovery of the fraud. But in this case, the object is to set aside a sale on grounds of public policy. There was no secrecy whatever, in the transactions, or in the conduct of the defendant. At the time of the sale, or in ten- minutes afterwards, the complainant might have had all- the information which he possessed when the bill was filed. — As. is properly said in *Prescott*v. *Hibbell,*it is necessary to distinguish between a knowledge of the fraud and the discovery of the evidence by which it may be substantiated. But if the-complainant *157in this case had not the evidence of the facts on which he relies, it was surely to his own laches he is indebted for his ignorance.

*1563 Brod. & Bing. 116.

*Í*Sclt. & Lef. 438.

IHillC.R. 217.

*157It is ordered and decreed that the bill be dismissed, but Without costs.

The plaintiff moved to reverse the decree of the Chancellor,

1. Because the knowledge of the fraud charged in the .bill against defendant, was from the disclosure of Mr. Anderson, and made to plaintiff only about one month béfore filing the bill, and, therefore, plea in bar in analogy to the statute of limitations, should not have availed the defendant.

2. Because the discovery of the testimony of Mr. Anderson was the first knowledge of actual fraud in defendant at the sales — which was within four years before filing the bill, and, therefore, the statute could not avail the defendant.

3. Because the Chancellor, from the pleadings made, and the evidence, should have set aside the sheriff’s sale complained of.

*Clinton*& Hanna, for the motion.

*Witherspoon,*contra.

*Curia, per*

Dunkin, Ch.

The Chancellor, having determined that the defendant’s plea in bar should be sustained, has not detailed the whole of the testimony, but expressly waives a further examination of it, or the consequences resulting from it. But, judging from the facts reported, this Court is of opinion that they afford no ground for invalidating the purchases made by the defendant.

We are all of opinion that the plea was properly sustained. The ground of complaint is that, at a sheriff’s sale, the defendant fraudulently stifled competition, by certain public declarations which he then and there made to the bystanders. Whatever he said or did might have been heard or observed by any man in the crowd, and so the evidence establishes. If it can be believed that this was not known to the complainant until six years afterwards, it is his own fault. But this should not take from the defendant the shield which the' statute affords to any discussion of long by-gone transactions.

The decree is affirmed and the appeal dismissed.

Dargakt, Ch. concurred.

*Per*Johnston, Ch.

I deem it worth while in this case to express my opinion, separately; although I come to the same result with the Chancellor, and, therefore, concur in affirming his decree.

I do not think the facts stated in the decree are any evidence of fraud on the part of the defendant; and, therefore, *158am of opinion the bill was properly dismissed, independently 0f statute of limitations.

3 Pr Wms 143, 144; vide 2 Scho. & Lef. 635; 1 Ball & Beatty, 166, 167.

*1 Hill Ch.251.*

ViaeGresley’s -q.Ev. 288-9.

On the subject of the statute, if the case were necessarily í0 ]-,e pUt on that, I should have more difficulty.

The bill avers that the facts constituting the alleged fraud, came to the plaintiff’s knowledge within four years before the filing of the bill. Such an allegation is substantially an averment that the plaintiff was ignorant of them until that time; and I am of opinion that such an averment throws the burden upon the defendant of proving that the plaintiff was acquainted with the facts for four years or upwards before the bill was filed; otherwise, he is not. entitled to the benefit of his plea of the statute.

I avail myself of this occasion to throw out this opinion, with some of the reasons upon which *it is*founded, because I believe there is some misapprehension among some portion of the profession, upon the subject.

The general doctrine is, that the statute will not be applied, equity, as a bar to relief against fraud until the facts constituting the fraud are discovered. Cases upon this subject question, whether the plaintiff, in avering his ignorance of the fraud of which he complains, is to be regarded as offering a reason why the statute should not run against him, or whether his negative averment is not rather to be regarded as the statement of a case which is *prima facie*true ; and thereby furnishing the defendant a fair opportunity to deny the fact, and entitle him to the benefit of the statute, by proving notice or knowledge on' the part of the plaintiff.

If the plaintiff is obliged to prove his ignorance prior to the time when he admits in his bill that he received information, this is a negative which, in its nature, does not admit of proof; and it follows, that the bar of the statute must be applied by this Court from the date of the fraudulent transaction — contrary to its own maxim, that the statute, in cases of fraud, runs only from the discovery.

“Ignorance,” says Johnson, J. in the case of *Hopkins*v. Mazyck, “cannot be proved. Who can enter into the heart of man, and ascertain what knowledge dwells there.”

It comes to this, then; that if the burden of proof lies on the plaintiff — if he can relieve himself from the currency of the statute only by proving his ignorance, *the*protection afforded him by the maxim of this Court is a mockery; and the Court might as we'll permit the statute to run from the perpetration of the fraud.

It is a general rule that negatives need not be proved; an¿ the cases in which exceptions are allowed, will be found to be cases in which the nature of the matters involved ad-

*1592 B & B 303, cited Gresley’s Eq. Ev.289.

See Beame's Pleas in Eq. 29, 168, 209, and Willis’s Pleading, 248, note; Law Lib. vol. 35. 1 Br. P. C. 455. 4 Dess R. 479’

Bail. Eq. 459.

3 Pr. Wms. 144.

Bail. Eq. 420.

mits the possibility of proof, But ignorance) in its very nature, admits of no evidence.

The analogy is strictly to cases where a party pleads avers a want of notice; of which *Eyre*v. *Dolphin*may serve as an example. The answer stated a purchase for valuable consideration, without notice, and, upon going evidence, the plaintiff had to prove the notice. '

Undoubtedly it is the English practice, that if plaintiff charges fraud, and that it was not discovered till within the statutory period, the statute is not a good plea, unless the defendant denies the fraud, or avers that the fraud, if any, was discovered beyond the time limited by the statute. Now, if the defendant contents himself with denying the fraud, and it is found against him, the plaintiff must be relieved. If, however, the defendant would avail himself of the statute, he must aver that the fraud was discovered more than six years (with us 4 years) before bill filed.

1. He must swear to the discovery.

2. As he avers an affirmative proposition, I think he must prove it.

The English practice requires him to plead it, averring the discovery in the plea, and supporting the plea by answer.

The averment must be made and proved, in order to bring defendant’s case within the statute: — so I infer.

It is true that, in *Booth*v. Warrington, and in *Wambursee*v. Kennedy, some proof was attempted of the time of discovery ; but, as might be expected, it amounted to nothing, as such proof always will; and in the latter case, the Chancellor says — “they state in the bill, that they were not informed until within one year of filing their bill; and there is no proof, on the other side, to induce a belief that they had any earlier knowledge.”

Says Chancellor Harper, in *White*v. *Paussin,*“ the rule is notorious, that time will not run to protect a fraud, until the fraud has been discovered(which, by the way, is very much the way in which the doctrine is laid down in *So. Sea Co.*v. *Wymondel.*“ It is true,” continues Chancellor Harper, “ that the party seeking relief in such a case, must allege that the fraud was discovered within the statutory period before the filing of the bill. The allegation is not strictly susceptible of proof; but it is material to put the defendant upon proof of discovery.” To the same effect, see his observations in *Thayer*v. *Davidson.*

These observations I have thought proper to make, with a view to future cases, as well as because unless I was satisfied, here, that'there was proof of knowledge in the plaintiff prior to the time stated in his bill, I could not concur in the application of the statute.

But it appears that the plaintiff was at the sale, and had *160opportunities to know all the facts upon which he now relies. I, therefore, think the bill was well dismissed on the ground of the statute as well as on the merits.

*Decree affirmed.*