Hamlin v. Oliver , 77 N.H. 523 ( 1915 )

The fraudulent concealment by the defendant of the plaintiff's cause of action is an answer to the plea of the statute of limitations. Quimby v. Blackey, 63 N.H. 77, 78; State v. Nute, 63 N.H. 79, 80; Way v. Cutting,20 N.H. 187. If the defendant pleads the statute, it may be avoided by proof of the facts alleged in the second count.

In an action for deceit, the plaintiff must allege and prove, not only that the representation was false, but also that it was made with a fraudulent intent. Spead v. Tomlinson, 73 N.H. 46, 60. "The declaration should include an averment of a scienter, that is, knowledge by the vendor that the representation made is false, which amounts to fraud. The fraud being the gist of the action, an averment of it cannot be dispensed with. In this, all the authorities agree." Bedell v. Stevens, 28 N.H. 118, 125; Hoitt v. Holcomb, 23 N.H. 535, 552; Mahurin v. Harding, 28 N.H. 128, 131; Hanson v. Edgerly, 29 N.H. 343, 357; Pettigrew v. Chellis, 41 N.H. 95, 102; Springfield v. Drake, 58 N.H. 19. The counts in the plaintiff's declaration seem technically defective in this respect. As the case is understood, fraud is the ground of the plaintiff's action. If that be the case, permission to perfect the declaration by amendment will be granted as of course.

Case discharged.

All concurred.