Quimby v. Blackey , 63 N.H. 77 ( 1884 )

1. The fraud by which a cause of action is concealed need not be other than that which caused the original injury, in order to prevent the operation of the statute of limitations (Way v. Cutting, 20 N.H. 187, 192), or which from its nature remains secret. Bailey v. Glover, 21 Wall. 342. The defendants' neglect to give information to the plaintiff, in December, 1871, of the finding of his money, and to restore it to him, knowing it was the plaintiff's money, was a fraud upon him. By their silence and inaction afterwards "the original fraud was kept on foot." Their wilful silence was a fraudulent concealment of the plaintiff's cause of action, and constitutes a sufficient answer to the plea of the statute of limitations. Bowman v. Sanborn, 18 N.H. 205; Douglas v. Elkins, 28 N.H. 26, 32; Coolidge v. Alcock, 30 N.H. 352; Way v. Cutting, 20 N.H. 187; Wear v. Skinner,46 Md. 257; Stearns v. Page, 7 How. 819; Bailey v. Glover, 21 Wall. 342, 348; Sherwood v. Sutton, 5 Mason 143; Booth v. Lord Warrington, 4 Bro. P. C. 163; South Sea Co. v. Wymondsell, 3 Peere Wms. 143; 2 Gr. Ev., s. 448; 2 Sto. Eq. Jur., s. 1521.

2. Mrs. Barker's excuse for not giving the exact language of Mrs. Blackey's threats, and for sending her son out of the room, would be likely to impress the jury favorably in regard to her credibility as a witness. If Mrs. Blackey, the plaintiff's witness, made threats against John N. Blackey, that fact was material to be shown. If Mrs. Barker was herself in the habit of using profane language, and of permitting her son to use it in her presence, it might tend to show that her alleged reason for not giving the exact language of the threats was untrue, and might tend to show that she was untruthful in her testimony in regard to Mrs. Blackey. The testimony was competent as tending to contradict the witness upon a material point, and for the purpose of weakening her testimony. Martin v. Towle, 59 N.H. 31, 32.

3. The ancient rule, requiring a criminal prosecution of the offender before allowing a civil action, is not adapted to our situation and circumstances, and has not been adopted in this state. Pettingill v. Rideout, 6 N.H. 454; Hollis v. Davis, 56 N.H. 74, 85. So far as Bank v. Flanders, 4 N.H. 239, may seem to hold otherwise, it has been overruled by subsequent decisions and universal practice and understanding.

Exceptions overruled.

CARPENTER, J., did not sit: the others concurred.