to her election, where there was a general devise in her favor, precisely as she may be called on when a testator expressly provides that the thing devised is to be taken in lieu of the devisee's dower in his estate. Yet it will scarcely be pretended that such a direction would defeat the widow's estate in lands aliened before the execution of the will. Our books furnish us with no case countenancing such a doctrine-at least, none have been brought to our notice by counsel noted for industrious research, for the reason, as I take it, that this idea has never been entertained, either at law or in equity. It is said, however, that a leading object of the act of 1797, and now of the act of 1833, is to protect the heir or devisee from the unreasonable exactions of widows, claiming to take both under the will and at law. And so, indeed, it is. It was predicated upon the reasonable presumption that a testamentary gift to a man's wife is, unless otherwise expressed, always intended by the testator to be instead of dower in the lands descended from, or devised by, him. A positive rule was, therefore, introduced in aid of this presumed intention, for the benefit of hæres natus and hæres factus. But was it also intended to operate for the benefit of a stranger alienee? I have already endeavored to show it was not, and, indeed, this appears to me to be so plain as to leave no room for cavil in ordinary cases. But, as leading to a different conclusion in this litigation, we are directed to the covenant of warranty entered into by the husband of this demandant. It is argued that, as his devisees may be made to answer in damages for a breach of it, the only way in which their estates can be protected is by denying the demandant's right to recover. We must, however, recollect that we are not, now weighing the consequences that may flow from a breach of the testator's covenant. We are called on simply to declare the meaning of a statute, which must be the same whether there be warranty of the lands aliened or not. If it be conceded that the husband's unassisted alienation is impotent, under the terms of the statute as they stand, to destroy the wife's dower, it must necessarily result that a new quality can not be conferred on the act by a covenant not at all within its contemplation.

If without a covenant of warranty the case would be without the purview of the enactment, how can the presence of such a covenant enlarge the circle of its operation? It may be well enough to say, it ought to work such an effect, but the answer is, the statute does not so provide. The error consists in the endeavor to wrest it from its legitimate application to a class of

cases which may be called general, to make it subserve the exigencies of a particular instance, probably not thought of at the time. In this aspect of it, the argument is reduced to this proposition. Lands aliened inter vivos are or are not within contemplation of the acts. If they are, it requires not the aid of a special undertaking by the husband, to make them operative; if they are not, such an undertaking can not extend the circle of their efficacy. This must have been the view taken in Leinaweaver v. Stoever, 1 Watts & S. 160, where the husband executed a bond to indemnify against the wife's claim of dower, a recovery on which would, of course, have decreased his remaining estate. Yet it was deemed so unimportant in the decision of that question, that it was neither urged on the argument nor noticed in the opinion of the court.

For the reasons given, the judgment rendered by the district court must be reversed, and as the special verdict finds everything necessary, the proper judgment in favor of the demandant will be awarded by this court.

Judgment reversed, and judgment for the demandant.

DOWER, WHEN BARRED BY PROVISION IN WILL.-In case of a devise to a widow in lieu of dower, the widow has an election, either to accept the devise or claim dower: Hall's Case, 17 Am. Dec. 275; and if the devise be accepted, dower is barred: Jackson v. Churchill, 17 Id. 514. In Larrabee v. Van Alstyne, 3 Id. 333, a bequest was held not a bar, it not appearing that the wife had accepted it in lieu of dower. In Gray v. McCune, 23 Pa. St. 449, the doctrine of the principal case, that the acceptance of a devise under the husband's will did not bar the widow's right of dower in lands which the husband had conveyed to a stranger, and which formed no part of his estate, was approved; but held that an instrument executed by the widow, in this case, was not limited to lands of which her husband died seised, but operated as a release of her right of dower in lands conveyed by her husband to his son by a former wife, in the conveyance of which she had not joined; and in Bradfords v. Kents, 43 Id. 478, in commenting upon the substitutes for dower recognized by the Pennsylvania legislation, the principal case was cited on the proposition, that although an accepted devise or bequest under the will of her husband is in lieu and is a bar of the widow's right of dower, yet her right of dower out of lands alieued by the husband in his life-time, and during coverture, is not taken away by statute; and (page 479) that, as far as lands embraced in the intestate laws are concerned, the widow is shut up to the substitute, but lands which do not descend under such laws are unaffected. The widow is not required to elcct between dower and a provision under her husband's will, unless the intent that she should do so appears expressly or by necessary implication from the will: Hamilton v. Buckwalter, 1 Am Dec. 350; Evans v. Webb, Id. 308; Fickett v. Peay, 6 Id. 594: Adsit v. Adsit, 7 Id. 539; Jackson v. Churchill, 17 Id. 514; Gordon v. Stevens, 27 Id. 445; White v. White, 31 Id. 232; Church v. Bull, 43 Id. 754. In Van Orden v. Van Orden, 6 Id. 314, the widow was held barred by the acceptance of a legacy; while in Wiseley v. Findlay, 15 Id. 712, it was held she could not be barred by a devise

of an estate for years, nor by a provision in personal estate; and in Wood v. Wood, 28 Id. 451, that she could not be compelled to elect between her dower and a testamentary provision out of a mixed fund to arise from a sale of testator's realty and personalty, where there was nothing to show that her dower interest was intended to be sold as part of the estate, but she might claim both. A widow can not be endowed of lands given in exchange, and those received, but she may elect of which she may be endowed: Mahoney v. Young, Id. 114. And the relinquishment of dower, in the husband's life-time, in one of the parcels of land exchanged, does not amount to an election to take dower in that parcel, but rather indicates an election to take dower in the other parcel: Id. As to when the wife is compelled to elect between benefits conferred by will and a share in community property, see Theall v. Theall, 26 Id. 501, and note.

THE PRINCIPAL CASE IS ALSO CITED in Pettit v. Fretz's Ex'r, 33 Pa. St. 122, in reference to the construction of a married woman's act, to the point that "an obscure statute ought to be construed according to the rules of the common law."

FERRIS v. HENDERSON.

[12 PENNSYLVANIA STATE, 49.]

STATUTE OF LIMITATIONS DOES NOT BEGIN TO Run, in Equity, against a claim, where fraud is involved, until the fraud is discovered.

IN DETERMINING WHEN THE STATUTE OF LIMITATIONS BEGINS TO RUN, IN CASE OF FRAUD, regard may be had to the condition and circumstances of the person on whom the knowledge of the facts is to operate.

BILL in equity by Thomas Ferris, born in 1774, the slave of Joseph Becket, and claiming to be free in 1780, because he had not been duly registered. The other allegations appear in the opinion. The prayer was for an account and discovery, and satisfaction for services fraudulently obtained. A plea of the statute of limitations was sustained by the court below, and the bill dismissed. Complainant appealed.

Dunlop, for the appellant.

Woods, for the appellee.

By Court, COULTER, J. In Overseers v. Kline, 9 Pa. St. 218, it is said by Mr. Justice Rogers: "If it appeared in evidence that the defendant knew of the non-registry of Sylph, that she was entitled to her liberty, and fraudulently concealed that fact from her, a different case would be presented. Or if he had compelled her, taking advantage of her ignorance, to serve him, it would be another matter." Now all these ingredients are distinctly charged in the bill of the complainant in this case. Thus it is contained as follows: "Nevertheless as your orator

expressly charges, that notwithstanding the aforesaid Joseph was well acquainted in the premises, that is, that the orator was free, he, the aforesaid Joseph, fraudulently concealed the same from your orator, and held him in a state of slavery until the first of January, 1810, under pretense and a threat, that if your orator did not faithfully serve him, the said Joseph, as a slave as aforesaid until the full expiration of the time last mentioned, that then he, the said Joseph, would hold your orator a slave for life." And the bill continues in substance to aver that the deed of manumission was alleged by the said Joseph to be an act of humanity in consequence of the plaintiff agreeing to serve as a slave for seven years. And the deed itself, which is appended to the bill, wears that complexion. It recites that the said Joseph, from motives of benevolence and humanity, agrees to set free from slavery his mulatto man, Thomas Ferris, on condition that he will serve seven years. The bill further alleges that the plaintiff was forced to serve one year after the expiration of the seven years, under the pretense that such was the true meaning of the act of manumission, which he was induced to believe, owing to the unhappy condition of his birth and consequent ignorance.

The bill further alleges that the said Joseph Becket died in 1816, testate, leaving a large estate, but that executors or administrators with the will annexed were never qualified, nor any account of the estate returned. That the defendants are his representatives and devisees, and further, that the plaintiff was free at the time he was manumitted, but that he was totally ignorant of that fact until the year 1846, when it was first discovered by him. The respondents do not answer the bill specially, but allege that the charges of fraud therein set forth are not true, and plead that the statute of limitations is a bar to the plaintiff's claim, if he ever had one. The issue, therefore, is upon the validity of the statute, as a bar, under the facts set forth in the bill. The court below decided that the statute is a bar. The defendant does not answer that the fraud is not sufficiently set out in the bill, nor that the plaintiff had the means of discovering the fraud, but relies altogether on the statute as a bar, in the language of the plea, even if a claim once existed, such as is set out, and prays judgment of the court thereon. In equity the statute of limitations begins to run from the discovery of the fraud, and not before: Brooksbank v. Smith, 2 You. & Coll. 58; Story's Eq., sec. 1521. In the case from Younge and Collyer, Baron Alderson said: "In cases of fraud

the statute runs from the discovery, because the laches of the plaintiff commences from that date, on his acquaintance with all the circumstances." The plaintiff may reply fraud to the plea of the statute of limitations, and avoid the plea: Harrisburg Bank v. Forster, 8 Watts, 12. Against a right of action, dependent on a secret fraud, the statute runs only from the discovery of the fraud: Pennock v. Freeman, 1 Watts, 401. But the court below say that when the party might have discovered the fraud, the statute began to run, and fix the period of its commencement in 1810, when the plaintiff was discharged, and cites a case from Pickering: Farnam v. Brooks, 9 Pick. 212; and from 3 Massachusetts: First Mass. Turnp. Corp. v. Field, 3 Mass. 201 [3 Am. Dec. 124].

These cases doubtless refer to circumstances where the defendants were guilty of supine negligence, and had the means of discovery in their possession. Because all frauds are discoverable by evidence somewhere in rerum natura. It depends, however, on the intelligence, acuteness, and activity of the party. I have examined the case of Farnam v. Brooks, 9 Pick. 212, on which the court below rely. The court say that the common law allows fraud, if not discovered until within six years before action brought, to be a good answer to the statute; courts of equity do no more, except that they do not in all cases require a recent discovery to repel the statute: Page 244, and in page 246. If the aggrieved party knew of the fraud when committed, or had full possession of the means of detecting it, which is the same thing as knowledge, it will deprive him of his remedy. In that case, the party had in his possession the books and documents which established the fraud. The bill in this case charges actual fraud in the suppression of the truth, that the complainant was free, and in the assertion of a falsehood, that he was a slave, by means whereof he procured the agreement of the mulatto to serve seven years. The reckless assertion of that which is not true, by means whereof a man cheats and obtains the advantage of another, is a fraud: Bree v. Holbech, Doug. 655; Jones v. Conoway, Rees' Ex'r, 4 Yeates, 109. The nature of the fraud is quite sufficiently indicated and pointed out in the plaintiff's bill; but that was settled by the decision on the demurrer. In Jones v. Conoway, Rees' Ex'r, it was held that where there is fraud, the statute does not operate unless it be discovered within the time, nor then when the party is ignorant that the facts constitute a fraud. In this case, the complainant was born a slave and held as a slave till an advanced period of his life. He