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Fraud and the Statutes of Limitations
Published online by Cambridge University Press: 16 January 2009
Extract
The recent case of Lynn v. Bamber has revived an interesting and undecided point upon the Statute of Limitations and has given McCardie J. an opportunity of exploring with his usual thoroughness a somewhat difficult region of law. In Lynn v. Bamber the plaintiff bought from the defendant young plum trees warranted to be ‘Purple Pershores.’ Some years later, on their bearing fruit, he found them to be ‘Coe's Late Red,’ a cheaper sort of plum. He sued the defendant for damages for breach of warranty and, as his suit was brought more than six years after he had bought the trees and would prima facie be barred by the Statute of Limitations, 1623, he alleged that the defendant had fraudulently misrepresented to him the nature of the trees and had fraudulently concealed from him the breach of warranty. McCardie J. found on the facts that fraud was not proved and that therefore the Statute of Limitations was a good defence, but held in a long and interesting judgement that if fraud had been proved the Statute of Limitations would have been excluded.
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- Copyright © Cambridge Law Journal and Contributors 1931
References
1 [1930] 2 K. B. 72.
2 Prec. in Ch. 518.
3 (1767) Ambl. 645; 3 Bro. C. C. 639 n.
4 3 Bro. C. C. 639 n.
5 2 Sch. & Lef. 607, 630.
6 See per Lord Westbury, Knox v. Gye (1872) L. R. 5 H. L. 656, 674; per Palles C.B., Barber v. Houston (1884) 14 L. R. Ir. 273; per Holker L.J., Gibbs v. Guild (1882) 9 Q. B. D. 59, 74; per Story J., in Sherwood v. Sutton (1828) 5 Mason (New Hampshire) 143, 146; and the argument of counsel referred to by Lord James of Hereford in Bulli Mining Co. v. Osborne [1899] A. C. 351.
7 I think it will be found that Lord Redesdale's other judgements support this interpretation—perhaps even more than his judgment in Hovenden v. Annesley. In particular in Cholmondeley v. Clinton (1821) 4 Bligh 1, where the question was whether an equity of redemption could be acquired by twenty years' possession adverse to the mortgagor but not to the mortgagee, he clearly said that the Court was acting in obedience to the statute. But the question was within the sole jurisdiction of equity and, on the meaning more usually (but, it is submitted, wrongly) given to Lord Redesdale's distinction, was one on which the Court would act by analogy to the Statute.
8 E.g. Peek v.Gurney (1873) L. E. 6 H. L. 377.
9 E.g. Re Hastings (1886) 35 Ch. D. 94 (C. A.).
10 This method of applying the Statutes of Limitation is admirably illustrated inThomson v. Eastwood (1877) 2 App. Cas. 215, 241.
11 4 Bro. P. C. 163.
12 The report does not relate what Mary, Countess of Warrington, thought of the proceedings.
13 See in particular per Story J. in Sherwood v. Sutton (1828) 5 Mason 143, per Brett L.J. inGibbs v.Guild (1882) 9 Q. B. D. 59, andper Palles C.B. in Barber v. Houston (1884) 14 L. B. Ir. 273.
14 See in particular South-Sea Co. v. Wymondsell (1732) 3 P. Wms. 143 and Hovenden v.Annesley (1806) 2 Son. & Lef. 607.
15 9 Q. B. D. 59 (C. A.).
16 p. 68.
17 p. 64.
18 (1884) 14 L. E. Ir. 273, affirmed on appeal, 18 L. R. Ir. 475; the Court of Appeal found that there was no sufficient evidence of fraud, but said that if there had been fraud the suit would nevertheless have been barred, as Palles C.B. held.
19 [1899] A. C. 351. The Courts of Equity had a special jurisdiction in cases of mines: see Jesus College v. Bloom (1745) 3 Atk. 202.
20 [1899] A. C. 351.
21 Some further discussion of the authorities will be found in Oelkers v. Ellis [1914] 2 K. B. 139.
22 Moseley 244. 23 (1781) 2 Doug. 654.
23 (1781) 2 Doug. 654.
24 (1820) 2 Br. & B. 73.
25 (1823) 2 B. & C. 149.
26 (1854)10 Ex. Rep. 39.
27 (1856) 1 H. & N. 459.
28 (1882) 9 Q. B. D. 59.
29 (1886) 54 L. T. 247, 723.
30 (1914) 111 L. T. 529.
31 (1886) 54 L. T. 247, 723.
32 [1930] 2 K. B. 72.
33 (1914) 111 L. T. 529.
34 It does not appear from the report that Bailhache J. expressly found that the concealment was fraudulent, but he decided the point of law on the basis of fraudulent concealment. It should be noted that the claim on the writ and tha pleadings appears to have been a claim for breach of contract, and a different conclusion might have been reached if a claim for damages for deceit had been pleaded.
35 (1886) 54 L. T. 247, 723.
36 Peek v. Gurney (1873) L. B. 6 H. L. 377.
37 (1846) 5 Hare 542; 2 Ph. 354; the judgment on appeal was based upon rather different grounds.
38 Bond v.Hopkins (1802) 1 Sch. & Lef. 413;Blennerhassett v.Day (1811) 2 Ball & B. 104.Hunter v. Gibbons, where the plaintiff tried to avoid the Statute in a Court of Common Law by an equitable replication under the Common Law Procedure Act, is an authority against the present contention; but see the observations of Brett L.J. upon this point inGibbs v. Guild.
39 Pages 430, 431.