Callaway v. West , 56 Ga. 684 ( 1876 )

Bleckley, Judge.

1. It was decided in 49 Georgia Reports, 431, that, according to the 8th section of the limitation act of 1869, the Code, unaffected by suspension acts, applied to contracts made after June 1st, 1865. The action in the'present case was not brought within six years from the maturity of the note, or from the date of the credit entered in the handwriting of the principal maker. Upon the authority of the decision just cited, the action was barred.

2. The Code, it is true, provides that a fraud on the part of the defendant, by which the plaintiff has been debarred or deterred from bringing suit, makes the period of limitation run only from the time of discovering the fraud: Section 2931. According to the plaintiff’s evidence, the rejection of which is complained of, West took upon himself the professional duty of bringing the action, violated that duty, and then pleaded the statute; and, it seems, that the plaintiff was ignorant, for a considerable time, that suit was not brought as he had a right to suppose it would be. There is a strong look of fraud in the showing which the plaintiff makes, and we should deem it sufficient, until answered and contradicted by counter-evidence, if it clearly appeared that the plaintiff was thereby debarred or deterred from suing on the note within time to save his action. But the statute had commenced to run before the fraud commenced; and, on that side we have the general rule that when the statute has once started it does not stop, except for something not under control of the plaintiff’s will. On the other side is the fact that the fraud was discovered before the bar had attached. There was still time for the plaintiff to have saved his action. Why did he not sue then instead of waiting until the whole six years had run out? While this question remains unanswered, we cannot feel authorized to say that the fraud debarred or deterred him. If the matter were less doubtful than it is, we had better leave the plaintiff, as client, to get his proper redress out of the defendant, as attorney, than to trench upon the statute with an exception not quite clear.

Judgment affirmed.