Page:Federal Reporter, 1st Series, Volume 6.djvu/366

 35i FEDERAL REFOBTEB. �state of facts, dependmg upon whether or not the limitation pleaded was five or ten: years. Again, it would throw upon the defendant the burden of alleging and proving the time of the plaintiff's discpvery of the fraud. �The time of the plaintiff's discovery of ,the,fraud is always within'his knowledge, and rarely within that of the defendant. If, therefore, a defendant is required to allege and prove the time of the plaintifE's discovery of the fraud, he might be often deprivedof tl?e benefit of the statute of limitations, which is a statnte of repose, and .should be liberally construed. �The earliejT equity practice would have required the setting up in the bill of the ^lleged fraud, to which the defendant might have pleaded the lapse of time, and to that plaintiff might reply the recent discovery of the fraud. Story, Eq. PI. §§ 676, 677. The later equity practice required th« plaintiS in hi^fjtiill to allege the time of the discovery of the fraud, so as to avoid the lapse of time and the plea of the statute where it applied. gee Mitford & Tyler, PI. 356 ; Carr, Assignee, v. Hilton, 1 Curtis, 390; Story, Eq. PI. § 754; Field V. Wilson, 6 B. Mon. 489; Car mais v. Parker, Adm'r, 7 J. J. Marsh. 455. �In equity, the burdei; of alleging and proving, if denied, the time of the discovery of a fraud, is upon the plaintiff, in the suit for relief upon that ground. �I have heretofore oonstrped this section of the statute of limitations by the light of the previens equity rule, in the suits for relief for fraud or mistake, and it is proper that the equity practice, as to the mode of pleading, should be applied as far as it can be, having regard to the express provisions of the Code of Practice. : �The Kentucky Code, unlike that of New York and many other states, requires parties to plead to an issue, and recog- nizes such pleadings as replies, rejoinders, surrejoinders, etc. Section 100. It is, therefore, difficult to find any de- cision touching upon the point under consideration. �The New York Code provides that in cases of fraud, the cause of action is "not deemed to have accrued until the dis- covery, by the aggrieved party, of the facts constituting the ��� �