Sherwood vs. Sutton. As to the statute of limitations, there is no pretence of any discovery of the fraud by the plaintiff until within six years. He had no means of discovering it; as soon as he did, he brought his action. The defendant has not proved, that he ever made it known to any person, who could have told us, or given any public information. STORY J. in summing up to the jury said :-Upon the issue joined between the parties upon the statute of limitations, the real question is, whether the fraud of the plaintiff alleged in the declaration was concealed by the defendant, so that it never came to the knowledge of the plaintiff until within six years before the commencement of this suit. There is no pretence, that either Hillyer, or the defendant himself, ever communicated the facts to the plaintiff, or to any other persons, so that they could be publickly known or communicated to the plaintiff at an earlier period. Under such circumstances the jury must draw their own conclusions from the natural presumptions arising from the facts in evidence and the situation of the parties, and find their verdict accordingly. It is not controverted, that this vessel was in fact the Spanish brig Antonio; and was not a British vessel. The defendant has not attempted to maintain, that she was the British brig Anna, or bona fide entitled to use the British register belonging to that vessel. If then the jury are satisfied, that the register used for the brig Antonio, though genuine, belonged to the British brig Anna, and that the defendant at the time of the sale to the plaintiff knew the fraud, and was a party to it, and also knew, that the brig Antonio was a Spanish vessel, it seems to me, that the averments in the declaration, negativing the British, and averring the Spanish character of the brig, are completely made out. But it is said, that the repairs made at Portland were such, that if the brig had possessed a genuine British character, she Sherwood vs. Sutton would, by the British registry acts have forfeited her national character; and if she afterwards sailed under her register, she was liable to seizure and condemnation therefor. And I am called upon to state, that if the repairs so made exceeded fifteen shillings a ton, these repairs did in fact destroy her national character. I cannot give such an instruction to the jury, for several reasons. In the first place, there are not sufficient facts established in the case to enable the Court to say, that such would be the necessary effect of the repairs in the present case under the British registry acts. If this had been a real British vessel, and the repairs were no more than were necessary to enable her to return to a British port, and prosecute her voyage thither; and if the necessity for such repairs had arisen since her last departure from a British port, it is by no means clear to my mind, that the case would not be fairly within the reach of the exceptions of the British registry acts, as they have been read at the bar from Mr Abbott's Treatise on the Law of Shipping. As far as my recollection goes, the British courts have been disposed to put an indulgent construction upon those acts in cases, where there has been a clear necessity for the repairs to prosecute the voyage. Now the evidence does not show in particular when, or how, or under what circumstances, or at what time the necessity for these repairs arose. The plaintiff was not privy to her former history, and cannot be presumed to be acquainted with facts occurring previous to his purchase. Nor has it been established in proof, that if the brig had been bonâ fide British, she would in fact have lost her national character by these repairs. There is no evidence, that she has been seized or decreed to be forfeited on this account. It is admitted, that upon her return to Jamaica after these repairs, she was allowed upon the change of ownership to receive a new register at that port, as a British vessel; and though there seems to have been some hesitation or difficulty about the matter, the final decision affords some presumption, that the repairs (great as they were) were not deemed Sherwood vs. Sutton. ipso facto to destroy her British privileges and character. But this point is the less material, because, however the case might be as to a real British vessel, if this brig had not that character, the repairs could not bar the plaintiff's right of recovery. She is not proved to have been seized or condemned on account of these repairs; and the injury done to the plaintiff by the fraudulent misrepresentation of the defendant gave him a complete title to an action for damages. The right of action then being complete by the fraudulent misrepresentation, (if sufficiently proved,) independently of any subsequent events; the next question is, what damages the plaintiff is entitled to recover. My opinion is, that he ought to recover to the extent of the actual injury sustained by him. The true rule of damages in cases of this nature is, to allow the difference between the value of the vessel, if her real character had been known, and the price, at which she was bought under the faith of her being a vessel entitled bona fide to the privileges and benefits of such a British character. To this extent at least he has sustained a loss. Now it is in proof, that as a Spanish vessel, at the time of the purchase, she was not worth more than 500 dollars, that is, than the value of her materials, if she were broken up. As a British vessel she was worth 1500 dollars; and on the faith of the representation made of her possessing such character, the plaintiff gave that sum for her. The difference between these sums is a loss actually sustained by the plaintiff, for he had paid 1000 dollars more for the vessel than she was worth, and that upon a false representation of the defendant. But it farther appears, that upon the faith of this representation the plaintiff went on and expended about 1900 dollars in repairs; and I am of opinion, that of this sum the jury are at liberty to allow the plaintiff such portion as they deem reasonable to remunerate any loss, for which the plaintiff has not received any indemnity or compensation by the subsequent earnings of the Sherwood vs. Sutton. ship or otherwise. For the loss was a fraudulent representation. direct consequence of the It has been argued, that the plaintiff ought not to recover any more than nominal damages, because the condemnation may have been caused by the amount of the repairs. But I am of a different opinion. In the first place, as has been already observed, there is no sufficient proof of the real cause of the condemnation. In the next place, if the averments in the declaration are proved, the plaintiff has manifestly sustained more than a nominal damage. He has at least paid 1500 dollars for what was worth no more than 500 dollars; and this by the fraud of the defendant. What answer to him could it be to say, I have cheated you out of 1000 dollars, and because you have lost the vessel by another cause, I am entitled to retain the money? There appears to me to be sufficient evidence (if believed) to show, that the plaintiff has sustained more than nominal damages; and the jury are bound to allow him such as in their judgment he has sustained in consequence of the fraud. Verdict for the plaintiff-$4364,50. Note. A bill of exceptions was filed, and a motion made in arrest of judgment, which was argued at May term 1828, and decided at October term 1828. See post. CIRCUIT COURT OF THE UNITED STATES. Fall Circuit. RHODE ISLANd, november term 1827, at providence. Hon. JOSEPH STORY, Associate Judge of the Supreme Court. BEFORE Hon. JOHN PITMAN, District Judge. JOHN MC DOWELL vs. THE BLACKSTONE CANAL COMPANY. Advances made on account generally, for work done under several distinct contracts, some of which have not been completed, must be applied in the first place to the extinguishment of the amounts due on the contracts which have been completed, and not of those which have not been completed. ASSUMPSIT on several counts. (1.) On a special agreement for excavating and embanking sections Nos. 11 and 12 of the Blackstone canal, at 10 cents per cubic yard for excavation, &c. &c. (2.) For labour and services generally. (3.) For work and labour by a person as agent of the plaintiff. There were several other counts, which the plaintiff discontinued before the trial. Plea, the general issue. At the trial it appeared in evidence, that sundry sums of money had been advanced, from time to time, by the Canal Company to the plaintiff, for which he had given receipts, acknowledging the same to be advances on account generally. It also appeared in evidence, that the plaintiff had entered into several distinct contracts for the excavation &c. of several sections of the canal, in |