Lead Opinion
delivered the opinion of the Court.
This was an action of trover, brought by Scott against Arnold, to recover damages for certain bank notes and silver coins of said Scott, by him charged to have been converted by Arnold to his own use. Arnold pleaded, first, not guilty ; second, not guilty within five years'. Scott joined issue on the first plea, and to the second replied that within ten years next before the said action was commenced, said Arnold secretly took the said bank notes and silver coins in the said declaration mentioned, out of the possession of him the said Scott; and without his knowledge or consent, secretly converted the said bank notes, &c., to his own use ; and that said Arnold, for and during the space of five years next after the said taking and conversion, concealed the said taking and conversion, so that he, the said Scott, did not within that time come to the knowledge thereof; and avers that he was thereby defeated and obstructed in bringing his action, &c. To this replication the defendant demurred. (14) Judgment for the plaintiff, and to reverse this judgment the defendant prosecutes his writ of error.
By the statute, the time for bringing actions of trover is limited to five years, with a proviso that if any defendant by absconding or concealing himself, or by removal out of the State, &c., where such cause of action accrued, or by any other indirect means shall defeat or obstruct the bringing or maintaining of the action within the limited time, such defendant shall not be permitted to avail himself of the benefit of the act.
For the defendant it was contended that he could not be brought within this provision of the statute, unless it were allcdged that he had done some act to obstruct the plaintiff in bringing his action, within the five years next after the cause of action had accrued; that mere silence on the subject of the taking could not be construed to be an act done, to defeat or obstruct the bringing of the action ; that the law seems to require that the defendant should not be deprived of the benefit of the statute, unless he did some other act (than that by which the right of action accrued) to defeat or obstruct the plaintiff in bringing his action.
All the difficulty in this case seems to arise out of the character of the property, alledged to have been taken and converted. The bulkof money is so small, and one piece of money is so much like another, that its concealment differs very little from the privacy of a prudent and honest man in keeping such property. Between the prudent use and the concealment of more cumbrous property, there is a greater difference. Had the defendant, for example, taken a wagon of the plaintiff, and used it on his
Dissenting Opinion
dissenting,
I dissenf from this opinion, on the ground, that the statute begins to run, from the time the cause of action accrues; and the ignorance or knowledge, of the plaintiff', as to rights, can make no. difference, since the fact is not susceptible of proof, andmust rest, in m,ost cases, entirely in the breast of him who affirms his ignorance.