Dean v. Ross
| Decision Date | 03 April 1901 |
| Citation | 178 Mass. 397,60 N.E. 119 |
| Parties | DEAN v. ROSS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph C. Holt and Ralph W. Gloag, for plaintiff.
Asa P French, for defendant.
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. Com v. Mackay (Mass.) 58 N.E. 1027. The case of Carlisle v Weston, 1 Metc. 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. St. c. 129, § 79; Pub. St. c. 167, § 82. Moreover, in this case the fact appeared in evidence, which did not appear is 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 the bonds were confessedly the property of the plaintiff, and to that statement the defendant made no objection.
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, '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 "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. Ross herself." We do not agree with ...
To continue reading
Request your trial