Page:Federal Reporter, 1st Series, Volume 6.djvu/365

 BABLOW V. ABNOLD. 853 �paid in consequence of said fraud ; and that, to avoid the rnti ning of the statute from that tirae, the plaintiff must allege facts tending to show that, after using reasonable diligence, he did net discover the fraud until within five years before the institution of this suit. �If this be tiue, then defendant is entitled to a judgment on the plea of the statnte of limitations, beoauto that plea is not traversed or avoided. ' �The sixth section of article 3, c. 71, Gen. St., title, "Limita- tions of Actions," is in these words : "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 mistake; but no such action shall be brought 10 years after the time of making the contract or the perpetra- tion of the fraud." �In a previens section (second) of same article and chapter, it is enacted that "an action for relief on the ground of fraud or mistake" "shall be commenced within five years next after the cause of action accrued. " �The question is, when does the cause of action accrue in such cases ? �It is necessary for the defendant, under the Kentucky Code System, to plead the statute of limitations, but whether it is BufBcient for him to assume that the cause of action accrued upon the perpetration of the fraud, and leave to the plaintiff to avoid the running of the statute from the perpetration of the fraud by the allegation and proof of a discovery of the fraud since its perpetration, is an undecided question in this state. �It may be argued that, under section 6, if the defendant relies on the 10-year limitation as therein provided, he must allege that the fraud complained of was perpetrated more than 10 years before the bringingof the suit; and that if he relie? on the five-year limitation of that section, he should allege the discovery of the aUeged fraud more than five years before the institution of this suit. This argument would not be without force, but the objection to it is that there would be different times when the cause of action accrues on the eame �v.6,no.4— 23 ��� �