178 Mass. 397 | Mass. | 1901
1. The defendant’s first contention is that she is entitled to have judgment arrested because it is not alleged in the declaration that the plaintiff owned or was in possession of the bonds which it is alleged that the defendant converted to . her own use. But such an objection is taken too late; it does not go to the jurisdiction of the court. Commonwealth v. Mackay, 177 Mass. 345. The case of Carlisle v. Weston, 1 Met. 26, relied on by the defendant, was decided before it was provided by statute that no motion in arrest of judgment should be allowed unless it is for a cause which affects the jurisdiction of the court. St. 1852, c. 312, § 22. Gen. Sts. c. 129, § 79. Pub. Sts. c. 167, § 82. Moreover in this case the fact appeared in evidence, which did not appear in Carlisle v. Weston, namely, that the property converted belonged to the plaintiff; and in addition to that, in this case it was assumed in the charge of the judge that
2. The sole question raised by the defendant’s exceptions to the refusal to give the second and sixth rulings asked for, is the question whether there was evidence on which the jury would have been warranted in finding under proper instructions that the cause of action for converting the six bonds delivered to the defendant in June, 1891, was not barred by the statute of limitations. It does not appear whether any instructions were or were not given to the jury on the point. We think that there was evidence on which the jury would have been warranted in finding under proper instructions that there was a fraudulent concealment of the cause of action. The plaintiff’s case was that the defendant falsely represented to her that the spirit of her departed husband spoke to her through the defendant, that she believed the representation and relied on it, and relying on it gave the bonds to the defendant. Under the instructions of the court the jury must have found that this was a deception. According to the plaintiff’s evidence the deception was kept up until a year before the suit was begun. The only evidence as to the time when the plaintiff’s eyes were first opened to the fact that there was a deception is her testimony that she had her last spiritual séance in 1896; in that séance the defendant pretended to act as a medium through whom the plaintiff was conversing with her dead husband, and the plaintiff testified : “ I said, 6 You have taken everything from me, and have given it to the medium.’ ‘Well,’ he said, ‘if I had as much again I would give it to the medium.’ ” The plaintiff further testified: “ 6 Don’t you tell me,’ I said, ‘ that it is Mr. Byron. That is .never my husband talking, nor is it a spirit. That is Mrs. Boss herself.’ ”
We do not agree with the defendant’s contention that if a defendant, who falsely represents that the spirit of a dead, husband speaks through the defendant’s lips, and thereby obtains the plaintiff’s property, is successful in continuing the deception for six years next after the last cent of the plaintiff’s property has been obtained, the plaintiff is without remedy when her eyes are opened; on the contrary we are of opinion that in such a case there is concealment of the fraud, and the
3. The evidence that the plaintiff bought three of the bonds and paid par for them was evidence that they were worth par; the evidence that the other twelve were bonds of the same issue, coupled with that evidence, was sufficient to warrant a finding that they also were worth par.
4. The defendant’s last two contentions are that no one can say that spirits do not speak through mediums, and that if the deception was so obvious that the plaintiff ultimately found it out she cannot rely on having been deceived by it but ought to have found it out before. As to the first contention it is enough to say, without going further, that the defendant did not rest her case on the truth of her representations that the plaintiff’s dead husband spoke to the plaintiff through her, the- defendant, but on the fiat denial of the whole story told by the plaintiff; and of the second contention it is enough to say that the defendant made the representations to the plaintiff immediately after the death of her first husband, and her eyes seem to have been opened at or about the time she was married to her second husband.
Exceptions overruled.
