Schubring v. Circuit Judge , 1 McGrath 499 ( 1893 )

To vacate an order striking amended declaration from files, and reinstate cause for hearing.

Granted April 7, 1893, without costs'

The circuit judge held, that the amended declaration introduced a new cause of action after the statute of limitations had run.

The action was trespass on the case. Plaintiff, exchanged with defendant a stock of merchandise of the value of $1,060 for a piece of land which defendant “ falsely and fraudulently represented to have a cash value of $1,500,” while “in fact the land was not worth more than $500,” and in addition to the stock of goods, plaintiff gave her note for $500, secured by mortgage upon the land conveyed to her. The mortgage was afterwards foreclosed and the land bid in by defendant for the amount of the mortgage. • The original declaration alleged that the defendant falsely and fraudulently represented the parcel of land “ to be 100 feet deep, running back to an alley in the rear thereof, with a width of 25 feet ” * * * and plaintiff avers that in truth and in fact the said piece of land at the date of said exchange * * * was not 100 feet deep, but was only 50 feet deep and did not run back to an alley as aforesaid.”

The amended declaration alleged tJiat defendant “fraudulently represented to said plaintiff that the said premises had a depth of 100 feet extending back from an' alley to Warren avenue, to-wit, to where Warren avenue would come when opened up,” whereas “ in truth and in fact the said piece of land * * * was not 100 feet deep, but was* only 50 feet deep, and did not run back to Warren avenue, to-wit, to where Warren avenue would come when opened up.”