Page:Federal Reporter, 1st Series, Volume 6.djvu/363

 BARLOW V. ARNOLD. 351 �save the debt. There is no evidence to siiow that a •writ of attachment could have been obtained, and even the defend- ant, who lived near Cole, says that he was not aware of his insolvency at that time, and doubted it as late ad December, ■when the levies were made. �Judgment will be entered for the plaintifiFs for the amount claimed. ���Baelow V. Arnold, Executrix, etc.* �(Uircuit Court, D. Kentucky, March, 1881.) �L Btatutb of Limitations — Kbntucky — Fkaud — Discoveet of — When Cause of Action Accrues— Plbading — Phacticb. �The Kentucky statute of limitations (Gen. St. art. 3, e. 71, j 6) pro- vides that " in actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or ihistake;" and, by section 2, such ac- tions must "be commenced withiu flve years next after the cause of action accrued." In a suit to recover money expended and lost by reason of the fraudulent representations of defendant's testator, Tidd, that it will be presumed that the cause of action arose when the fraud was committed, and, to avoid such presumption, the plaintifi must allege and prove the time of the discovery of the fraud. �2. Bamb— PiBADrfTG — Phacticb. �And where the defendant had pleadedthe statute, allegingthat the cause of action accrued when the alleged fraud was committed, (which was more than flve years before the suit was brought,) held, that upon failure to reply thereto the defendant is not deprived of her right to a judgment in her favor, because she had also alleged that the fraud was discovered more than flve years before suit was brought, to which the plaintifl had tendered the general issue. �3. Kbntuckt Codb— Phacticb— Statuts of Ldutationb— Demubkeb �— Equitt Phacticb. �Motion for Judgment on the Pleadings. �B. W. Wooley and Muir e Heyman, for plaintiff. �Bijur <& Davie and W. H. Cheef, for defendant. �*Keported by Messrs. riorien Glauque and J. C. Harper, of the Cincinnati bar. ��� �