Persons v. Jones

• Decision Date: 31 January 1853
• Docket Number: No. 61.,61.
• Citation: 12 Ga. 370
• Parties: George W. Persons, plaintiff in error. vs. Gabriel Jones, defendant.
• Court: Georgia Supreme Court

12 Ga. 370

George W. Persons, plaintiff in error. vs. Gabriel Jones, defendant.

No. 61.

Supreme Court of the State of Georgia

JANUARY TERM, 1853.

Case, &c, in Columbia Superior Court. Tried before Judge Starns. September Term, 1852.

This was an action on the case, for a deceit. The allegeddeceit was in trading to plaintiff a note tainted with usury, and concealing the fact. It appeared, on the trial, that plaintiff brought suit on the note, and upon a plea of usury, judgment was obtained against him. An exemplification of the proceedings in that cause, was in evidence. The errors assigned in this case, arose upon the charge of the Court.

The counsel for the plaintiff asked the Court to charge that the action did not accrue to plaintiff, until the judgment against him in Monroe Court.

That if the action did accrue before that time, the Statute of Limitations did not begin to run until plaintiff had discovered the fraud, or might have discovered it.

That the portion of the plea of L. S. Persons, in the case in Monroe Inferior Court, namely: " The said plaintiff, knowing said note to be usurious, as aforesaid, " was no evidence against the plaintiff, to show his knowledge of the usury.

The Court then charged the Jury as follows:

" If this had been an action of warranty, the Court might possibly have felt authorized to charge that the Statute did not begin to run until the judgment in Monroe County, but that was an action in tort, for the alleged frauds of defendant, and the causes of action, must have accrued either at the time of the fraud or the discovery of it, and that the Statute would begin to run at one of these points, will be subsequently considered; that in this case the Statute must be held to have run from the discovery of the fraud, or from the time when the plaintiff might have, with ordinary care and attention, reasonably detected it; that the Jury must, from all the circumstances of the case in evidence, determine whether the plaintiff did discover the fraud, or whether he might, with reasonable care and attention, have detected it; that for the purposes of this case, he would hold—though distinguished Jurists had differed, and our own Supreme Court had reviewed their opinion and forebore to decide the question—that cases of fraud form an implied exception to the Statute, to be acted on by the Courts of Law and Equity, according to their respective jurisdictions.

That the portion of the plea referred to, was not, per se, evi-dence of the knowledge of the plaintiff of the fraud, but in determining when the plaintiff had such knowledge or information, if ever, or might have had such knowledge or information, with care and attention, and thence determining when the Statute commenced to run. The Jury were authorized to look into the plea in question, as part of the proceeding in Monroe County Inferior Court, and taking it in connection with that proceeding, and with all the circumstances of the case, to say, whether or not the plaintiff had such information of the fraud, if it had been committed, or should have been, by such proceeding, put upon such information, and at what time; on which charge error has been assigned.

E. H. Pottle, counsel for the plaintiff in error, submitted the following points, and relied upon the following authorities:

First—A party who transfers a promissory note for value, warrants, by implication, that it is genuine, and free from any defect which would make it worthless. Winter vs. Bullock, 6 Geo. Rep.

Second—His liability to the transferrer, and the extent of that liability, can only be ascertained by a judgment against the transferrees, and from that time alone, the cause of action accrues, and the Statute begins to run. Cowper et. al. executors, vs. Godmond, Clerk, 9 Bing. 23. E. C. L. Rep. 452. Walker vs. Bradley, 3 Pick. 261. Shearman vs. Sally Adkins, administratrix, 4Pick. 282. Angel on Lim. pages 110, 111. Miller vs. Eskridge, 1 Iredell's Law Reports, 147. Jones, executor, vs. Lightfoot, 10 Alabama, 18.

Third—When a plea of usury has been filed and sworn to, according to the Statute, the defendant is only required to verify the facts as to the usury. Cobb's New Digest.

A. J. Miller, for the defendant in error, submits the following points and authorities:

First—The record of the proceedings in Monroe Inferior Court, having been put in evidence, the plea of L. S. Persons being a part of that record, was evidence.

Second—The cause of action accrued when the alleged fraud was committed; that is to say, when the note was sold and delivered. 1 Sandford\'s S. C. Rep. 98. 3 Ircdell\'s Rep. 481. 20 Johns. Rep. 33.

Third—The Statute of Limitations is not suspended at Law, by fraud. 20 Johns. Rep. 33. 10 Ohio Rep. 469. 3 Iredell's Rep. 481. 9 Vermont Rep. 110. Angell on Limitation, 193. 6 Georgia Rep. 21, 31, 33.

Fourth—If it be, it must be such fraud as conceals the knowledge of it from the party defrauded. Angell on Lim. 189.

Fifth—If the party defrauded had reasonable time to discover the fraud, he will be presumed to have had seasonable notice of it. 9 Greeirleaf's Rep. 131. Angell on Limitations, 195, 200.

Sixth—The pleadings do not allege, in relation to the note in evidence, when the fraud was discovered, nor that the discovery was within four years preceding the action. 5 Eng. Com. Law Rep. 403. 9 Ibid, 47. 5 Alabama Rep. 90, 101. 6 Georgia Rep. 35. 4 Leigh's Rep. 474.

By the Court.—Lumpkin, J. delivering the opinion.

This was an action on the case for a deceit, founded upon the following facts: Gabriel Jones, the defendant, as administrator of Joseph Barnes, deceased, held a note given originally by one Lewis S. Persons and others, to his intestate, and renewed to him after his appointment as administrator. This note was transferred to George W. Persons, the plaintiff, by delivery, in 1839. G. W. Persons held the note till 1845, when suit was brought by him against the makers, in the Inferior Court of Monroe County. They filed the plea of usury, and verified it in terms of the Statute, and the plaintiff failing to appear and testify, after the notice to do so, a verdict was rendered for the defendants, upon the facts set forth in their plea, which the law makes evidence in their behalf. George W. Persons, several years afterwards, commenced this action against Jones, to recover back, in the way of damages, the money paidhim on the note, who relies for his protection, upon the Statute of Limitations.

The errors complained of, are, for the refusal of the Court to charge as requested, and to the charge as given. They are threefold, and I will notice them in their order.

Counsel for the plaintiff asked the Court to instruct the Jury that the right of action did not accrue to the plaintiff until the rendition of the judgment against him, in the former suit, in Monroe County, against the makers of the note.

Was the party entitled to this charge? We think not. On the contrary, we are clear that the cause of action accrued instantly upon the transfer of the usurious paper; and that the plaintiff might have sued the next day, and recovered back the money paid for it. Mr. Chitty states the law to be, and such is the doctrine of all the elementary writers, that if a note is transferred for any sufficient consideration, by a party knowing it to be of no value, and the transferree be not aware of the fact, the former would, in all cases, be compellable to re-pay the money he had received. 9th edition of Chitty on Bills, (1840,) p. 244, 247. The note in this case was a nullity, to the extent that it was infected with usury. It was a contract made in violation of the express Statute of the State; and the cause of action was consequently complete at the same moment of time that the transaction was made. Every man transferring a negotiable security, warrants its collectibility, so far as its soundness—not its solvency—is concerned.

In an action on the case for a deceit, is it a sufficient answer to the Statute of Limitations, that the plaintiff was ignorant of his cause of action, until within four years next before the suit was brought? Upon this point, the Court below held that " Cases of fraud form an implied exception to the Statute, to be acted on in Courts, both of Law and Equity, according to their respective jurisdictions." Such had been the intimation of this Court in several previous cases, and such is now its deliberate decision.

We forbear to go at length into the argument, pro and con, having done so fully, in Conyers vs. Kenan and Hand, 4 Geo. Rep. 308. In Chancery, where the Statute of Limitations is pleadable, as well as at Law, it is a well settled rule that the Statute is no plea to a bill charging a fraud, if the bill be filed within a prescribed time, after the discovery of the fraud. 3 P. Williams, 143. 2 Dall. 364. 1 Dane\'s Digest, 625, and the authorities there cited. Why, in this State, should there be any difference between Chancery and the Common Law, in the construction and application of the Statute?

The case of Bree vs. Holbeck, (1 Doug. 656,) was assumpsit for £2, 000, had...