#### John McLure, and others, *vs.*John Ashby, and others.

In 1843 a fraudulent confession of judgment was made, and in January, 1847, money applicable to that judgment was raised by the sheriff from sales of defendant’s property. The plaintiff having taken steps to collect the money by attachment against the sheriff, this bill was filed in January, 1852, by other judgment creditors of the defendant to set aside the judgment for the *fraud:*— Held, that the bill was barred by the statute of limitations.

In Equity, if plaintiff alleges in his bill that the fraud was not discovered until within four years, the statute of limitations will not commence to run until the discovery. That allegation throws the onus of proving notice on the defendant; but it will be sufficient for him to show such notice as would put a reasonably diligent man upon the inquiry.

BEEOEE JOHNSTON, OH., AT UNION, JUNE, 1854.

Johnston, Ch. — This is a bill for relief against a fraud alleged to have been perpetrated by John Ashby and his brother Stephen, upon the plaintiffs, as creditors of the latter.

In March, 1843, Stephen, “being largely indebted to the plaintiffs and others,” (I quote from a former decree in this case, by Chancellor Dunkin,) “ gave notice that if they would meet him at Union, he would secure them as far as he could, by confessing a judgment. A meeting took place, March 9th, 1843, of the creditors mentioned in Exhibit A. The amount due each creditor was calculated with interest to January 1st, 1843, making, in the aggregate, $6,232 96,” and a note was taken for the whole, and a confession made on it.

“ The property of Stephen was levied on and sold at different times, between 1844 and January, 1847. A portion of the proceeds was applied to other executions. According to a statement, furnished by the Sheriff then in office, (Mr. Macbeth,) he had in his hands, and still has a balance of $5,339, to apply to the execution of March, 1843; and that the property of the *431debtor bas been exhausted. The amount due on the execution at that time, exceeded $8,000. Among the creditors proposed to be secured by this judgment of $6,232 96, was John Ashby.” “ The amount for which he was set down as a creditor, was $2,788 35. But he claimed to have .subsequently paid the debts due to E. P. Porter, $115, and to Sarah Ashby, $264, making the amount due him about $3,162, which amount he claimed to represent, (with interest from the 1st of January, 1843,) in apportioning the fund ($5,339,) in the hands of the Sheriff.”— Having taken steps to enforce his demand, by attachment against the Sheriff, the plaintiffs filed this bill, charging that the alleged indebtedness of Stephen to John was fictitious and fraudulent — a contrivance between the brothers to secure for themselves, or one of them, a large portion of Stephen’s property; and praying “such relief” that the fund be apportioned among Stephen Ashby’s *bona fide*creditors.

At the hearing before Chancellor Dunkin, it was proved to his satisfaction that the fraud complained of was, in fact, perpetrated. That the note taken by John from his brother, and. which entered into the confession of March, 1843, was utterly unfounded — that John was always, both before and after the note was taken by him, (as the Chancellor expresses it,) *“*a worthless and penniless vagabond,” utterly incapable of advancing the money, the loan of which was alleged by the parties to have been the consideration of the note — and the Chancellor decreed for the plaintiffs, overruling John Ashby’s plea of the statute of limitations (a).

*432Upon appeal taken, that decree was set aside; leave was given to the plaintiffs to amend their bill, by alleging that they had not discovered the fraud complained of, until within four *433years before they filed their bill, (which was filed January 31, 1852,) and a new trial was directed.

I have again heard the case, (the amendment having been *434made,) upon the same proofs wbicb were before Chancellor Dunkin, and upon additional proofs; and there is no doubt on my mind — there can be none on any mind — that the fraud is *435fully made out. John Ashby never was able to loan money to his brother, or any body else, to the amount of the note, or to any amount worth notice. He never shewed property, nor ex-*436Mbited the appearance of pecuniary means. He was destitute of credit; always embarrassed, idle, dissipated, drunken, and addicted to low gaming. I therefore desire to overturn his fraudulent claim, if well-settled principles of law will permit.

*437But he interposes the statute of limitations; and 1 do not see how it can be gotten over.

I take it that the statute runs, at law, from the time the act is done, for the protection against which it is necessary to in*438voke its bar: and that, at law, it matters not at what time the party, injured by the act, comes to the knowledge of it. Whether he was aware of the injurious act or not, the statute runs.

But — except as to matters strictly legal — the rule of this Court is different. With respect to merely legal rights, this Court applies the statute j^st as a Court of Law applies it. But in matters of an equitable nature — the terms of the statute not extending to them — this Court is not imperatively bound to ap*439ply it; and only applies it by analogy to the practice at law: and, then, it does not apply it when sound conscience would be offended by its application.

This matter of fraud is of purely equitable cognizance, and the doctrine of this Court is to apply the statute thus: In the absence of averment by the injured party, as to th'e time when the fraudulent act became known to him, the Court assumes that he had notice of the act when it was committed, and therefore holds that the statute runs from that time — but when, from the circumstances, the Court is persuaded that he came to the knowledge of the act afterwards, and not at the date of the fraud, the statute runs only from the time he obtained information.

But it is, generally, impossible for an aggrieved party to show his ignorance of the fraud of which he complains. He may show that he received information of it within the statutory period; but how is it possible for him to show that he had no information before ? in other words, that he was ignorant of it until that time? Unless he can throw the burden of proving notice to him upon the opposing party, he must be content to remain subject'to the general proposition, that in the absence of proof, the party aggrieved by a fraud, is presumed to have notice of its perpetration — and therefore the statute must run from that time.

Now, it is well known that a party may be defrauded, and yet be ignorant of the fact. In compassion for such a case, — ■ which is very common, — the Court allows parties to allege in their bill that they did not discover the facts constituting the fraud, until within four years — and as that averment is the allegation of a negative fact, which the party making it cannot prove, the Court, upon such an averment, throws the burden upon the other party, of proving earlier knowledge — which proof, being of an affirmative, he is capable of making.

I have stated my view of this doctrine, in *Thrower*vs. *440
      *Oureton ;*
      *(a)*
      **and shall content myself with a reference to that case for my reasons.

In this case, the plaintiffs have made the averment to which I have alluded — and it became the duty of the defendant to show that his fraud was known by the plaintiffs, at least four years before they filed their bill.

I think proof that a party has notice of circumstances calculated to awaken suspicion to such a degree as would induce ordinary men to go into an inquiry, is sufficient in such a matter as this, provided the party has the means of investigation in his power, or the notice gives a clue to the means of investigation. Besides, knowledge of facts need not be proved directly upon a party. You may prove his knowledge circumstantially, as in any other case. In this case, some of the plaintiffs lived within such distance of John Ashby, while he was in this State, as probably to have had an acquaintance with his condition and habits. But the most fatal testimony to the plaintiffs was from one of their own witnesses, in whom all confidence can be placed. Dr. Dogan, who was one of the creditors defrauded, but whose debt has been satisfied by a third party, states, that he was greatly interested in taking the confession. He was surprised at the demand of John Ashby, and consulted with the other creditors, who were taking it, whether they should object. They thought John had no means here to make the advances. They knew his apparent circumstances, and doubted his means to make them. They began immediately to inquire. Everybody whom they inquired of, told them that John could not make the advances — that he was worth nothing. They concluded it was not worth while to object; for if they did, Stephen might decline to confess. They concluded to let John’s claim come in, and said, among themselves, they could as well assail it at a future time as then.

*441Ia the view I take’ of this matter, this testimony is conclusive upon the plaintiffs.

-■ It has been supposed that though the claim of John, which was let into'the judgment, was fraudulent, and the plaintiffs had reasonable information ’ of the fraud, yet they were not obliged to proceed to avoid it until he-became active in enforcing its collection. I am of a different opinion. It was differently ruled in *Shannon*vs. *White ;*
      *(b)*
      **and ■ in *Whaley*vs. *Whaley,*
      *(c)*
      **an opinion is given by Lord Eldon, on the very point,’that the statute runs from the perpetration óf the fraudulent act, and-its .'being discovered.

; It is ordered that the bill be dismissed — the' defendants, John and Stephen Ashby to pay the costs.

- The plaintiffs appealed, and now moved this Court to reverse the decree on the grounds :

1. Because, from the ease made, the plaintiffs were entitled to the relief prayed for.

■ 2, Because the.statute of limitations formed no bar to the plaintiffs’ right to recover.-

. 3. Because the decree is, in other respects,-erroneous.

*Dawkins, Jor*appellant,,

cited. *Gbratz*vs. *Prescott,*6 Wheat. '481; *Micon .vs.- Grirod,*4 Plow. 503; *Bond*vs. *'Hopkins,*1 Sch. & Lef.' 428.

*Herndon,-,*contra,

cited. *Prescott,*vs. *Hubbell,.*1 Hill, Oh. '217; *-Bar’vs.’.Bar,*1 Hill; Ch. 391; *BHeltelberger*vs. Kibler, ■l-Hill,- Ch;,121. ' , . ' ■

The decree of Chancellor Dunkin referred to was made in June, 1853, and is as follows:

Dunkin, Ch. In March, 1813, one Stephen Jordan Ashby, being largely indebted to the complainants and others, gave notice that if they would meet him at Union Court House, he would secure them, as far as he could, by a confession of judgment. A meeting took place, 9th March, 1843, of the creditors mentioned in exhibit A. The amount due to each creditor was calculated with interest to 1st January, 1843, making in the aggregate, six thousand *432two hundred and thirty-two dollars and ninety-six cents. One note was given for this sum, and it stated, “ it being the amount due to all for notes, agreeable to the foregoing schedule, the whole amount distributable according to said schedule, to wit,” &c.; and judgment was thereupon confessed and entered up, and execution lodged in the sheriff’s office. The property of S. J. Ashby was levied on and sold at different times, between 1844 and January, 1817. It is stated that a portion of the proceeds was applied to the satisfaction of other executions. According to a statement furnished by the sheriff then in office, Robert Macbeth, Esq., he had in his hands, and still has, a balance of five thousand three hundred and thirty-nine dollars, to apply to the execution of March, 1843, and that the property of the defendant in the execution, S. J. Ashby, has been exhausted. The amount due on the execution at that time exceeded eight thousand dollars.

Among the creditors proposed to be secured by this judgment of six thousand two hundred and thirty-two dollars, was John Ashby, (brother of the defendant in the execution, S. J. Ashby,) and himself the principal defendant in these proceedings. The amount for which he was put down as a creditor, was two thousand seven hundred and eighty-three dollars and thirty-five cents, but he claimed to have subsequently paid the debts due to E. P. Porter, one hundred and fifteen dollars, and to Sarah Ashby, two hundred and sixty-four dollars, making the .amount, due to him, about three thousand one hundred and sixty-two dollars, which amount he insisted on his right to represent (with interest from the 1st January, 1843,) in the apportionment of the fund of five thousand three hundred and thirty-nine dollars in the hands of the sheriff. Having taken measures to enforce his demand by process of attachment against the sheriff, this bill was filed by the complainants, charging that the alleged indebtedness of Stephen J. Ashby to John Ashby, was fictitious and fraudulent; and that it was a contrivance between the brothers to secure for themselves, or one of them, a large portion of the property of S. J. Ashby, and praying that he may be enjoined from enforcing his proceedings against the sheriff, and that the fund may be appropriated to the payment of the *bona fide*creditors of S. J. Ashby, according to their legal priority, and for general relief.

In order to apprehend the charges, as well as the evidence, it is proper to premise that the alleged indebtendess to John Ashby, on which the judgment was confessed, was a promisory note, bearing date 15th February, 1836, payable twelve months after date, to John Ashby, or bearer, for seventeen hundred and fifty dollars, with interest, for money borrowed. It purports to be *433under seal, but has neither seal nor witness. No payment was indorsed on the note, and at the time of the confession of judgment, 9th March, 1843, the sum of two thousand five hundred and ninety-two dollars and eighteen cents was apparently due on this note, including interest to 1st January previous, and for that amount the confession was made. The charge is, that at the date of this note, John Ashby was a young man of no visible pecuniary means, and of thriftless habits — that he had been always so, and so continued. — that, on the other hand, his brother, Stephen J. Ashby, was, at the time, a man in business, of ostensible moans, and in good credit, and so remained until shortly before the confession of judgment, in March, 1843 — that John Ashby never had the means to make any such loans or advances, and that the debts to wallace, B. P. Porter and Sarah Ashby were paid with funds of S. J. Ashby. In answer to the interrogatories of the bill, John Ashby says that the note was given at the time it bears date, and was for money loaned — that he acquired the means for this and other moneys alleged to be paid by him, “by his honest industry and enterprise, and that he derived them from various persons for whom he did business, and with whom he had dealings for years anterior to the execution of said note; and that he acquired some of the means he used in the premises from his father’s estate.” In conclusion, he reiterates that “he derived the money referred to from his father’s estate, and from divers persons in the States of Georgia and South Carolina, for whom he did business, and with whom he had dealings, and that these moneys were the fruits of honest industry and enterprise — that he does not recollect that any one was present at the time of the execution of said note, and that the note bears the true date.”

Some twelve or fifteen witnesses were examined as to the pecuniary condition of John Ashby and of Stephen Ashby for twelve or thirteen years prior to 1843. Their testimony at length constitutes a necessary part of the statement of this case. The Court can only present the general result. But in that, as it appears to the Court, there is no discrepancy in the evidence. It is positive, circumstantial, and all leading to the same conclusion. The family, of which Stephen and John Ashby were originally a part, resided in TTnion District, in the fork of Broad river and Tyger. Both Stephen and John were known to several of the witnesses from their boyhood. *Stephen*at first kept a small doggery, (as the witness (Jeter,) stated,) until he married the daughter of D. Thomas, by whom he got property. He then continued in good credit until the close of his affairs, (in 1843 or 1844.) *John Ashby,*the defendant, left South Carolina about 1829 or 1830 — he was then about nineteen *434or twenty years of age — he had no visible property except a pony and saddle and bridle — he was absent some three or four years, and returned in the fall of 1834 — he had the same visible means as when he left the State, to wit, a riding horse, a little thin and jaded, “and his appearance, as to clothing, &c., about as when he went away” — he said he had been to Georgia. During 1835, he continued in this State, working with his younger brother, (L. H. Ashby,) a little farm where his mother had been living. The little crop was principally of corn, and the witness (Ison,) said that in the fall of the year, when he took twenty five bushels, which John Ashby owed him in the trade of a horse, there was but little left. It was cribbed in the house in which the defendant had been living. He left the country again early in 1836, and did not return until 1842. While he was here, in 1835, he was in the habit of drinking and gaming, and apparently without means. To one witness, with whom he had contracted a small account of twenty-five dollars, he offered to pay in *corn,*because he said he had no money — and to another witness, in the fall of 1835, he said he would swap horses, if he would take the boot (twenty-five dollars,) in corn, as money was an object, for he was going shortly to Georgia, and would need all the money he could get. Several witnesses were examined, who knew John Ashby in the State of Georgia, from 1829 or 1830 to 1835, and afterwards, until 1833, he was in Habersham county. — in 1833 and 1834, he seems to have been in Lumpkin county. The general statement of *David Nichols*is fully sustained by every other witness. Ashby was without any regular occupation — some times dug gold for a few days -together — was loose in his habits — dissipated—idle—-followed gaming and drinking — owned no property, and his credit not good for ten dollars. • He ran away from Clarks-ville, and the witness followed him to McMinn county, in Tennessee, to collect a debt he owed him for board, but he found Ashby entirely unable to pay him. The witnesses who knew him in Lumpkin, in 1833 and 1834, say that he was entirely without property and without credit — “generally idle, fond of drinking liquor, visiting houses of ill-fame, and gambling.” Without further scrutiny of the voluminous testimony, it may be sufficient to say, that so far as such fact is susceptible of proof, it is1 satisfactorily established that in February, 1836, the defendant had no means to lend his brother, S. J. Ashby, seventeen hundred and fifty dollars — that he had acquired no such sum “ as the fruits of his honest industry and enterprise, and derived from divers persons in the States of Georgia and South Carolina, for whom he did business and with whom he had dealings.”

What became of the defendant between the early part of 1837 and 1842, *435does not appeal1. It seems that in 1837 and 1838, he was in Georgia, and L. H. Ashby states he stood a stud horse there about those years. But in 1842 he came again to South Carolina. His father’s land had been sold under proceedings in partition. (The *record*was reported to have been in evidence before the Commissioner, but the Court is wholly without information in relation, to it.) The witness, *’William Wilson,*referring to.his visit in 1842, says he “heard the defendant frequently say that Jordan (S. J. Ashby) was owing him upwards of two hundred dollars for his interest in the land, and he must have it before he returned to Georgia.” But the witness, william McGrath, is the brother-in-law of John Ashby, his wife being Ashby’s sister. Witness married in June, 1835. He said that defendant came in September, 1834, and left in the early part of 1836. He was again here in 1842. He told witness, in 1842, that he had been in here after the money Jordan Ashby owed him, several times — that Jordan had promised to pay him one hundred dollars out of the crop of cotton then on hand — that he was in fear Jordan would not do it. Witness asked how much Jordan Ashby owed him. “He said he owed him for his interest in the land, and a sorrel mare — that the whole would make two hundred and forty or two hundred and forty-five dollars, he supposed.” On cross-examination, he said “the conversation as to the amount due from Jordan Ashby occurred between the widow Stokes’ and widow Jeter’s, as they were riding along — no one else present. This debt was for the land and the little mare — add both sums together, and the interest, would be two hundred and forty or two hundred and forty-five dollars.” Witness said Ashby’s share in the land was, as he thinks, one hundred and eighty-six dollars. It is impossible, he says, he could be mistaken as to the conversation — it took place in November, 1842. Witness has spoken of it in frequent conversations with Clinton Wilson — told it to Squire Ben Gregory in 1845 — told it to McLure when he asked him six months ago. It appeared that S. J. Ashby had obtained from D. Wallace, the former Commissioner in Equity, the share of John Ashby in his father’s land, and had given D. Wallace his (S. J. Ashby’s) note for the money. The note had been transferred by D. Wallace to John Ashby, and it amounted, in 1842, to about the sum of one hundred and eighty-six dollars, as stated by the witness. Eour months afterwards, S. J. Ashby confessed the judgment to John Ashby, not only on this note, amounting 1st January, 1843, to one hundred and ninety-one dollars and sixty-seven cents, but for an additional debt of two thousand five hundred and ninety-two dollars and eighteen cents, for money borrowed from him in February, 1836.

The defendant, John Ashby, left the State, finally, in 1844 or 1845 — S. J. *436Ashby moved with his family to the State of Mississippi some time afterwards. In 1847, the defendant went to Mississippi, and resides, since that time, in the same county, (Chickasaw,) with his brother, S. J. Ashby, and about two and a half or three miles distant from him.

The Court has remarked that there was no substantial contrariety in the evidence as to the condition of the defendant John Ashby from 1829 to 1842, Except the dry statements of his own answer, and the statement of his brother, S. J. Ashby, that the transaction was *bona fide,*and the moneys really borrowed and advanced, as alleged, the evidence, abundant as it is, can only be regarded as accumulative. Not an individual witness was examined in this State, for the purpose even of creating a doubt as to the truth of the evidence in respect to his (John Ashby’s) pecuniary condition, or his habits of life. No one could believe that, on the 15th February, 1836, this man, who, just before, had not twenty dollars to pay a store account — -who could not get credit for more than twenty-five or thirty dollars, and applied for the loan of five dollars to play cards, was in a situation to lend his brother, in cash, one thousand seven hundred and fifty dollars. But was he iu a condition to leave it in his hands without the payment even of interest for seven years, and until two years after the note was out of date ? The whole transaction appears to *the*Court a bold attempt at fraud and imposition. The evidence shows that John Ashby had no means to advance money to his brother, (S. J. Ashby,) or to pay his debts. It is most probable that S. J. Ashby had received John’s share of the proceeds of the land, and the Court would have inclined to sustain so much of the claim, to wit, the amount due on note to Wallace, Janiiary, 1843, one hundred and ninety-one dollars and sixty-seven cents, if it could be done consistently with the decision of *Fryer*vs *Bryan,*2 Hill Ch. 56. But upon, examination it appears, both from the statement of S. J. Ashby, and the admission in the answer of John Ashby, that the interest on two thousand five hundred ninety-two dollars and eighteen cents, for the year 1843, had been received. As the defendant was entitled to no part of this amount on this fictitious demand, it may very well be put to the other account, and would nearly extinguish it. ■

At the close of the defendant’s answer, he claims the protection of the statute of limitations. The application of the statute is not very distinctly perceived. As between the parties to the transaction, John Ashby and S. J. Ashby, the note of the 15th February, 1836, and the judgment, or any other security for it, are perfectly valid. If, (as was supposed to be the case,) the property of *437S. J. Ashby had proved sufficient to satisfy the whole amount of six thousand two hundred and thirty-two dollars, the plaintiffs would have had no ground of action, no cause of complaint. If S. J. Ashby had given separate judgments to each of the present plaintiffs, as well as to John Ashby, and the funds in the hands of the sheriff had been sufficient to pay all, the plaintiffs would have no cause of action in consequence of the turpitude infecting the defendant’s judgment. If the defendant had demanded and received from the sheriff, his alleged share of the fund, the plaintiffs would certainly be barred in four years from that time, unless from some other cause they were exempted. But until the defendant interposed his claim to the deficient fund, it is difficult to say that the plaintiffs’ rights were attacked. Suppose A., in possession of a large estate, should sell a small tract of land to B.,. which B. holds for five years, and then his land is levied on under a judgment in favor of C. against A., the vendor, could B. be precluded by the statute of limitations from showing that the judgment was fraudulent? Would the fraud of the parties be sanctified because C. had, through carelessness or design, refrained from provoking attack until four years had elapsed? The object of the statute is to give repose — to quiet the possession, but not to give aid to fraud which was only obnoxious to others when it became aggressive. If the statute could protect the defendant, his judgment was beyond attack before the sales under the execution were completed. It has been frequently repeated that the statute of limitations does not, in terms, apply to proceedings in this Court; but that lapse of time in Equity, in analogy, has been held to bar relief for fraud. In one of our eases it is said that “ to entitle a party to relief from a fraud in Equity, he must show that he is prejudiced by it; and in consequence of this prejudice or injury, it is that the Court proceeds to decree against the fraud.” The cause of action to the party would seem, then, to arise only when he is injured, or the attempt is made to injure him. If a fund were in this Court, to be marshalled among the creditors of an insolvent, and a judgment creditor presented a demand which could be proved to be fraudulent, would the statute bar the inquiry because four years had elapsed since the judgment was entered? The case seems not materially different. The fund is now in the custody of the law. The defendant has never had any adverse possession. He interposes a claim to the fund, which creates a legal lien, but which, the Court is satisfied on the evidence, is founded in fraud. He says no inquiry can be made, because four years have elapsed since the judgment was confessed. In *Bond vs Hopkins,*1 Scho. &Lef. 428, Lord Redes-*438dale says: “ The question is not whether the statute shall operate in a case not provided for by the words of the Act.” He holds that if the party has been guilty of such *laches*in prosecuting his equitable title as would bar him if his title was solely at law, he shall be barred in Equity, but that this is all the operation the statute has, or ought to have, in proceedings in Equity; and that it should not prevent a Court of Equity from doing justice according to good conscience, where the equitable title is not barred by the lapse of time.

If the Court had been of opinion that the statute applied, leave would be given to the complainants to amend the pleadings by alleging that they were not aware of the fraud until within four years, üntil they learned from the Georgia witnesses'the character, course of life, and destitution of means of the defendant while residing in Georgia, from 1829 to 1835, the plaintiffs could not have known the defendant’s inability to make a loan of this large amount in February, 1836, and this is, of course, the principal fact by which they are enabled to fix the charge of fraud upon the defendant.

It is ordered and decreed, that the defendant, John Ashby, be enjoined from further proceedings by attachment, or otherwise, against his co-defendant, Robert Macbeth, late Sheriff of ünion District, and that the funds reported by the said Robert Macbeth to be in his hands, and applicable to the execution of John McLure and others vs. S. J. Ashby, or so much thereof as may be necessary, be applied to the payment of the amount due to the plaintiffs in these proceedings, and such other of the plaintiffs in said execution as are yet unpaid, with the exception of the defendant, John Ashby, as representing the note to himself and D. Wallace, apd as assignee of the claim of E. P. Porter and Sarah Ashby — -that the other plaintiffs in said execution, who have not made themselves parties to these proceedings, have leave to do so by presenting their demands on oath before the Commissioner — -that the balance of the fund in the hands of the defendant, Robert Macbeth, after payment as aforesaid, and deducting the plaintiffs’ costs, be paid to the Commissioner of this Court, to await the further order of the Court.

**4 Strob. Eq. 155.

6 Rich. Eq. 96.

3 Bligh, 2.

*442The opinion of the Court was delivered by

ÜARGAN, Cii.

It would be supererogation to add much to what has been said by-the Chancellor, who heard this cause on circuit. For the facts, I refer to the statement of the Circuit decree. Nor has the reasoning of that decree left me much to say on the principal question involved in the cause.

In a court of law,.the statute of limitations runs against the party aggrieved, from the time when the injury is committed ; and the rule is the same, whether the aggrieved party has a knowledge of the trespass or injury, or not such knowledge.— This is a positive institution of the law, and is based upon policy, and a social necessity of having some well defined limits as to the time in which legal actions may be instituted. The statute of limitations does not annul the causes of action. It is a part of the *lex fori,*and simply withholds the remedial proceedings of the forum for the enforcement of contracts, and the reparation of injuries, after the lapse of the particular periods prescribed. Hence, they are obligatory only in the Courts, and to the extent that the law ordains. And hence, they are not obligatory upon this Court, and do not apply to proceedings in Equity, except so far as the Court has thought it conducive to the ends of justice to apply them, in analogy to the rules which prevail in a Court of Law. And as the Court only acts on this analogy, because of its subserviency to the ends of justice, it withholds such action, when it would'be obviously subversive of equity. From these reasons principally, have arisen the differences which are to be observed in the Courts of Equity, and of law, a.s to the application of the statute.

In actions at law, where fraud is the question, and the statute of limitations has been pleaded, no such rule prevails, as that the statute does not commence to run until the discovery of the fraud. The party injured must be barred by the positive prescriptions of the law, unless he can bring himself within some of the exceptions. But this has long been the familiar doctrine of this Court, and it is certainly equitable.

*443When a party comes into this Court by bill or petition, in a case of fraud, and apprehends that the defendant will plead the statute of limitations against him, he may by way of anticipation, and the proper course for him to pursue is, to state in his bill, or petition, that the fraud has been discovered within four years previous to the commencement of his suit. In the case now before the Court, no such allegation was made in the original bill, and the defendant pleaded the statute of limitations. The plaintiffs had leave to amend their bill, by making the proper averments; which they did. The issue was thus made up between the parties, and the case tried on these allegations.

When the plaintiff alleges that the fraud has been discovered within four years, he states a material fact, which, if true, exempts the case from the operation of the statute. But upon which of the parties devolves the burthen of proving the truth of such material allegation ? This is a question which, though it must often have occurred in practice, has not heretofore been very clearly settled.

A general rule that pervades the whole system of pleading, is, that a party who makes an affirmative proposition must prove it. Negatives, for the most part, are incapable of proof, and' to require them to be established as necessary to the recovery of one’s rights, is unreasonable and absurd. When the plaintiff alleges that he has discovered the fraud within four years, he makes a negative proposition, and one which it is impossible for him to prove. To exact such proof, is to withhold from him the benefit of the rule ; it is, in fact, to abolish it altogether. The question is, did the plaintiff have notice ? It is obvious that the affirmative is with the party who asserts the fact of notice, and whose interest it is to establish that fact. It is just and reasonable, therefore, to cast the *onus probandi*upon the party with whom is the affirmative.

This was the rule which prevailed in the trial of this cause. The fraud was most satisfactorily made out by the evidence. *444The defendants, under the plea of the 'statute of limitations, were required to prove that the plaintiffs had a knowledge of the fraud more than four years prior to the commencement of their suit. This fact was proven to the' satisfaction of the Chancellor who tried the cause, and this Court concurs in that conclusion upon the evidence. The whole proof of the fraud consists not in its being shown positively that a fraud was committed, but in the'violent and irresistible presumptions of fraud, arising from the penniless and vagabond condition of John Ash-by, who could not possibly have had a just claim of two thousand seven hundred and eighty-three dollars and thirty-five cents, against Stephen Ashby. By the report of the *Chancellor, “he*never showed property, nor exhibited the appearance of pecuniary means. •‘He was destitute of credit; always embarrassed, idle, dissipated, drunken, and addicted to low gaming.” How could such a man have a just claim against his brother to the amount stated ?■ Now of these facts, the plaintiffs were as fully cognizant in- March, 1843, when they made the arrangement, as they were when they filed their bill. This is not left to conjecture. It is'fully proved by the evidence of Dr. Dogan, one of the plaintiffs’ witnesses,’whose testimony is fully stated in the circuit decree. ■ In the issue of notice within four years, giving the plaintiffs' the benefit of the rule, as above stated, this Court is of opinion, as was the Circuit Court, that they have not rebutted the plea' of the statute of limitations.

It will be as well to remark in this connexion, that the notice of the fraud, the want of which will prevent the statute from running,'is not alone positive information that a fraud has been actually'committed. The notice will be sufficient to prevent the suspension'of the statute, if it be such, as would put unreasonably .diligent man upon the inquiry. -Nor must the aggrieved party wait until he has discovered evidence by which he may establish the fraud in a court of justice. If he has knowledge that a fraud has been committed, though that knowledge be *445confined to himself, he must proceed diligently ; for the statute in such case will not be suspended.

It is ordered and decreed, that the circuit decree he affirmed and the appeal be dismissed.

Johnston and WaRDLaw, CO., concurred.

Eunkin, Cn.,

dissenting. The facts of this case are substantially as follows : The sum of five thousand three hundred and thirty-nine dollars is now in the hands of the Sheriff of Union District, arising from the sales under execution of the property of Stephen J., Ashby. The amount apparently due to the eldest execution creditors exceeds.eight thousand dollars; Of this amount,.about one-half is claimed by the defendant, John Ashby,'who, in 1851, obtained a rule against.the Sheriff, to show cause why he did not pay over as much as was necessary to satisfy his demand. In January, 1852, the other execution creditors filed 'this bill, alleging that the demand of John Ashby was wholly fictitious and fraudulent; and they have established their allegation to the entire satisfaction of every member of the Court. Such was the announcement of the Appeal Court at the former hearing; and, in the decree of the Circuit Court recently made, the Chancellor uses this language : “ I have again heard this case upon the same proofs which were before the former Chancellor, and upon additional proofs, and there is no doubt on my mind; there can be none on any mind — that the fraud is fully made out. John Ashby never was able to loan money to his brother, or any body else. He was destitute of credit, always embarrassed, idle, dissipated, drunken, and addicted to low gaming” — and the Chancellor concludes by expressing his *“*desire to over.turmhis fraudulent claim if the law would pterm'it it” But the Chancel-; lor was of opinion that the statute'of limitations precluded'the *446plaintiffs from obtaining the interference of the Court to stay the hand of the defendant.

The judgment to the defendant, John Ashby, as well as to the plaintiffs, was confessed 9th March, 1843. There were other and elder executions in the Sheriff’s office against the debtor, Stephen J. Ashby. His property was levied on and sold at various times between 1844 and January, 1847. According to a statement furnished by the Sheriff, the property of the defendant was then exhausted, and the balance of five thousand three hundred and thirty-nine dollars was in his hands after satisfying the admitted prior liens. But among the executions in his office against S. J. Ashby was one against him as surety of D. A. Thomas to De Graffenreid, which was to a large amount, was elder than the execution of March, 1843, and was apparently unsatisfied. The creditors of Thomas insisted that the judgment of De Graffenreid was paid, and a litigation was then pending on the subject, which was not terminated until 1851, when the Court held that nothing was due on De Graf-fenreid’s judgment, and consequently the balance in the Sheriff’s hands was no longer liable to this claim. The exact amount of the De Graffenreid execution does not appear, or whether it would, or would not, have absorbed the balance in the Sheriff’s hands if the execution had been in truth unsatisfied. It does not appear from the evidence that, while the money was in the Sheriff’s hands pending the controversy as to the De Graffenreid execution, any injunction was issued to restrain him from paying to the junior executions, nor would any seem to have been necessary; nor, on the other hand, is there any evidence of any demand on him by the junior execution creditors until the result of the controversy was ascertained in 1851, when the rule on the part of the defendant, John Ashby, was taken out.

In an evil day for the plaintiffs, they took the trouble to apply to this Court. If, when John Ashby took out his rule against the Sheriff, the plaintiffs had also taken out a rule, as permitted by the Act of 1821, to test the validity of John *447Ashby’s lien, it might have been summarily and promptly decided by a court and jury. It was so ruled in *Posey*vs. *Underwood,*1 Hill, 262, where an attaching creditor was permitted to file a suggestion impeaching a judgment on the ground that it was fraudulent and not founded on a *bond fide*consideration, and the plaintiff, in the confession of judgment, was required to plead by a thirty day rule. But *Sutton*vs. *Pettus,*4 Rich. 163, is still more significant. The judgment was entered by confession in October, 1830. The plaintiff had issued a *scire facias*to revive the judgment, and at Spring Term, 1849, Sutton, who had, in 1846, become a purchaser from the defendant in the execution, resisted the application, and obtained an order to impeach the judgment of 1830 as fraudulent and not founded on *bond fide*consideration. The plaintiff in the judgment filed his plea, and upon the issue made up, the jury found against him. Various objections were made in the Appeal Court to the verdict thus rendered. Among others, it was said that the judgment was on record, and Sutton must, therefore, have purchased with notice. The reply of the Appeal Court is, that, “ upon the foundation of the verdict of the jury, Sutton is entitled to say that the judgment he assails is no judgment at. all as to him: that, *if he had notice of its existence, he had notice also, and at the same time, that it was fraudulent and void.”*No one seems to have supposed that the rights of Sutton would be impaired, or in any manner affected, by his knowledge of the mere existence of a lien which he at the same time knew to be fictitious. Nor was the inherent infirmity of the lien in any manner improved by the length of time during which it was permitted to lie dormant. Sutton interposed (not when he first knew of the fictitious character of the judgment, for, say the Court, he knew that it was fraudulent so soon as he knew of its existence, but) so soon as the attempt to revive and enforce this fraudulent lien interfered with his rights — and this is the true test. It is not enough that the transaction may be tainted with fraud and may be so *448known to the community. No third person can impeach it until his own interests are .attacked. ' Until that time he has no cause of action, and the statute can never commence to run until his rights are assailed, and he has knowledge of the fraudulent character of the attack. '

Now, as between' John Ashby and his brother, Stephen J. Ashby, the judgment, though gratuitous, was valid.: If the property of the debtor was. sufficient to satisfy, the plaintiffs as well as John Ashby, they would have no cause to complain.

The amount of their joint demands, at-the date ofthe judgment, was *six thousand two hundred and thirty-two dollars, and ninety-six cents.*In;March, 1843, the plaintiffs had reason to suppose that the property was sufficient; for although it was sold at the Sheriff’s block, and previous liens satisfied, the surplus in January, 1847, *vf&sfive thousand three hundred and thirty-nine dollars.*At that time, and from that time, the fund was in the hands of, the Sheriff, and is there now. . All had a common interest-to-defeat .the De Graffenreid execution, and until the result was known, the rights of the junior execution creditors could not be ascertained. In the meantime, no proceedings had been taken by the defendant against the Sheriff. So soon as. that, lien was removed and the defendant moved against the Sheriff, these, proceedings were promptly instituted. Although the plaintiffs may always well have suspected and confidently believed that nothing was, in fact, due to the defendant by Stephen J. Ashby, yet they did hot know that the enforcement of his demand would interfere with their interests; until the debtor’s property was exhausted; nor could they know the extent of their claim, if any, until De Graffen-reid’s lien was removed. As has been elsewhere said, the statute of limitations does not, in terms, apply to suits in this Court. What *laches*can be justly imputed to the plaintiffs ? What repose of the defendant is sought to he disturbed ? What quiet possession to be interrupted by the action of this Court ? He is actively endeavoring by means of his legal process, to *449obtain possession of funds to which he has not the shadow of right, and his monstrous fraud against the honest creditors of his brother and confederate in guilt will not be,' in truth,- consummated until, by the judgment in this cause, the fraud shall be declared not open to inquiry, and the fund shall pass into his hands. - •

I am of opinion that the plea of the statute has no application and should be overruled, and that the defendant, John Ashby, should be enjoined in his proceedings against the sheriff, and that the funds in the hands of the sheriff, should be paid to the plaintiffs so far as may be necessary to satisfy their demands. '

*Decree affirmed.*