SUBLETTE v. TINNEY et al., 9 Cal. 423

Field, J., delivered the opinion of the Court—Burnett, J., concurring. The plaintiff seeks a recision and cancellation of a contract entered into between himself and the defendants, Tinney and Casey, for the sale of certain interests in mining-claims; and, as the ground for the relief sought, alleges a false and fraudulent representation by them of the ownership and possession of the mining interests which they had agreed to transfer to him, and the transfer of which constituted the principal inducement to the contract.

To the complaint the defendants demurred, relying, among other grounds, upon the Statute of Limitations. The contract was executed, and bears date on the twenty-first day of January, 1854, and this suit was commenced on the second of March, 1857. The seventeenth

section of the Statute of Limitations provides that certain actions must be commenced within three years; and among others, “ an action for relief, on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.” The cause of action cannot be deemed to accrue upon the discovery of the fraud, in any other sense than that the statute will not be deemed to commence running until such period. Fraud is the substantive cause of action; upon its commission the right of action arises, not upon its discovery.

The policy of the law is, that actions on this ground should be commenced within three years; but, that innocent parties may not suffer whilst in ignorance of their rights, the statute excepts them from the limitation until a discovery of the fraud. The latter clause of the

section must, therefore, be construed as an exception merely to the general provision, and be pleaded as such. In the present case, then, the cause of action accrued upon the execution of the contract. As this was more than three years previous to the commencement of the suit, the cause of action was barred, and the objection being apparent upon the face of the complaint, could be taken advantage of by demurrer. If the plaintiff was within the exception of the statute, it was incumbent upon him to state it in his complaint. (Story’s Equity Pleadings, §§484, 751; Hoare v. Peck, 6 Simons, 51; Kane v.

Bloodgood, 7 John. Ch., 113.) In Humbert v. The Rector of Trinity Church, (7 Paige, 197,) the defendants objected by demurrer that the remedy was barred by lapse of time; and Mr. Chancellor Walworth, in affirming the decree of the Vice-Chancellor sustaining the demurrer, said : “It was formerly doubted whether a defendant in equity could, by demurrer, make the objection that the remedy was barred by lapse of time, or whether he must not resort to his plea.

But it now seems to be settled that, if it appears upon the face of the bill that the suit is barred by lapse of time, the defendant may demur; and that, if the case is within any of the exceptions of the statute, the complainant must state the fact in his bill.” The plaintiff in the case at bar has not by any allegations of tile complaint brought himself within the exception of thé statute, andthh1 demurrer-was therefore well'taken.' ,' . ,11 judgment ‘affirmed.' " ' , " . 1 . . ‘;f,