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jurisdiction of equity to set aside executed contracts on the ground of a breach of an agent's fiduciary obligations. Had it been treated as such, lapse of time, quite apart from the question of concealment, would have been no bar to a purely equitable cause of action which fell outside the scope of the Statutes of Limitation. But the case was decided on the basis of fraud, which, since no further fraud in the shape of concealment was proved, should have been statute-barred after six years. It will be remembered that Gibbs v. Guild turned on the point that, though the original fraud was barred, the particular equity arising out of the concealed fraud prevented the Statutes from running until the concealment was discovered by the plaintiff, though it is not very clear from the reports that the allegation of concealment was established. It is not an authority for the proposition that in any event an undisclosed fraud is outside the Statutes. Horridge, J., however, took the view that, as the actual decision in Gibbs v. Guild was that the replication as pleaded was an answer to the defence of the Statutes, it made no difference that in the case before him. there had been no concealment, and relying on the later case of Bulli Coal Mining Co. v. Osborne1 he held that the plaintiff's claim in respect of the original fraud could not be met by the defence of the Statutes of Limitation. That case, a Privy Council decision, was one of underground trespass by extracting the plaintiff's coal. There had been. no trespass for more than six years from the date of the action, or rather of the summons for leave to prove in the winding-up of the defendant company for the value of the coal wrongfully abstracted. There was no subsequent concealment of the trespass by the company. It was held that the claim was not statute-barred and that Courts of Equity are not within 1  A.C. 351.
the Statutes. Lord James of Hereford (at p. 363) is reported as follows:-"Now it has always been a principle of equity that no length of time is a bar to relief in case of fraud in the absence of laches on the part of the person defrauded. There is, therefore, no room for the application of the statute in the case of concealed fraud, so long as the party defrauded remains in ignorance without any fault of his own." Surely the answer is that there was no concealed fraud, only the original wrongful abstraction. In the absence of subsequent fraud there is no ground for invoking the aid of equity to defeat the operation of the Statutes in an action for trespass dating back beyond the statutory period. To admit the reasoning in the Bulli Case and Oelkers v. Ellis would involve eliminating the operation of the Statutes of Limitation in every case where the plaintiff, not himself guilty of laches, had failed to ascertain his rights of action, irrespective of subsequent fraudulent concealment by the defendant; whereas the equitable principle was before 1875 confined to cases where the concealment was fraudulent and had accentuated the original wrong complained of. It seems to the writer that it is impossible at this date to interpret the Judicature Acts as enabling a court to apply a purely equitable remedy, which formerly only arose in the particular case of concealment of fraud, so as to defeat generally on a common law cause of action the express enactment of the Statutes of Limitation. This could only be done by legislation. No one suggests that the remedy of specific performance has been made available since 1875 as a general remedy for breach of contract, nor can it be admitted that another form of equitable relief, that arising out of a fraud which conceals an existing cause of action, can be applied generally to remove the limitation bar. Both remedies are only available since fusion upon precisely the same principles as before. The
particular equity which arises from the fraudulent concealment of a cause of action should, it is submitted, be available on principle to a plaintiff faced with a statute-barred claim only where the original wrong, legal or equitable, is aggravated by fraudulent conduct which conceals the existence of the cause of action.
Index of Cases
Abercromby v. Fermoy Commissioners, 1900, I Ir. R.
Acton v. Blundell, 1843, 12 M. & W. 324..
284 n., 286 n.
Aktiebolaget v. Société Anonyme, 1910, 2 K.B. 727
Allen v. Wall, 7 Wash 316 ..
Angel v. Jay, 1911, 1 K.B. 666.
Armstrong v. Jackson, 1917, 2 K.B. 822.
Armstrong v. Milburn, 1886, 54 L.T. 247, 723; 2 T.L.R.
Arnold v. Holbrook, 2 Q.B.D. 96.
Ashby v. White, 2 Ld. Raym. 938....
Att.-Gen. v. Antrobus, 1905, 2 Ch. 188...
Att.-Gen. v. De Keyser's Royal Hotel, 1920, A.C. 508...
Badische Fabrik v. Chemische Fabrik, 1903, 11 L.T.R.
Badische Fabrik v. Johnson, 1896, 1 Ch. 25 s.c., 1897,
Bassett v. Nosworthy, Cas. Temp. Finch....
Bank, 1898, 2 Q.B. 658...
Bell v. Antwerp L. & B. Line, 1891, 1 Q.B. 103.
Bermondsey, Vestry of, v. Brown, 1 Eq. Ca. 215; 35 Beav.
Bourke v. Davis, 44 Ch. D. 120.
.284 n., 286 n., 293
Brace v. Duchess of Marlborough, 1728, 2 P. Wms. 491 272 n.
Brediman's Case, 6 Rep. 58b..
Bright v. Eynon, Burrow 390...
199, 200 n.
British Controlled Oilfields v. Stagg, 1921, W.N. 319....
Brownlie v. Campbell, 1880, App. Cas. 935 .
Bulli Coal Mining Co. v. Osborne, 1899, A.C. 351.
Champion, re, 1906, P. 86.
Cadman v. Horner, 18 Ves. 10...
Cantiare San Rocco. S.A. v. Clyde Shipbuilding Co.,
1924, A.C. 226...
Chaffin v. Betsworth, 3 Lev. 190.
Chandler v. Webster & Girling, 1904, 1 K.B. 493....
Chemische Fabrik v. Badische Fabriks, 1904, 90 L.T.R.
Cheney v. Bilby (C.C.A.), 32 Fed. R. 52.
Cherry v. Thompson, 1872, L.R. 7 Q.B. 563.
Cochrane v. Moore, 1890, 25 Q.B.D. 71.
Collins v. North British M. & I. Co., 1894, 3 Ch. 228.
Commissioners of Sewers v. Glasse, 19 Eq. 164, 7
Ap. 456 C.A....
Conradie v. Rossouw, S.A.L.R., 1919, App. D. 279.
Coventry, Earl of, v. Wills, 12 W.R. 127
Cowper v. Cowper, 1734, 2 P.Wms. 720..
Cox v. Burbidge, 1863, 13 C.B.N.S. 430, 32 L.J.C.P. 89
Dalton v. Angus, 1881 L.R. 6 App. Ca. 740, 50 L.J.Q.B.
D'Amico v. Trigona, 1888, 13 App. Cas. 806...
Davie v. Beardsham, I Cas. Ch. 39.