thority of the so-called "Confederate Government," March 7, 1863. The defendant in error, in connection with others, perhaps, became the purchaser at said sale. of United States coin in its use as money may be shown or considered to be other than as declared by the coinage acts of Congress. Is not the position that the value of gold and silver coin as regulated by Congress is conclusive, supported by the statement of Mr. Justice Bradley in the Legal Tender Cases, where he says, in effect, that the very object of the Constitution in making it specially the duty of the general government to provide a national currency was to avoid the fluctuations, uncertainties, and insecurities, which otherwise would exist and operate with all the partiality to local interests? And yet what can be done by a trial court more strikingly illustrative of a doctrine repugnant to this, than to permit a jury, sitting on a negligence case, to take judicial By the several coinage acts of Congress, gold and silver coins of the United States are made legal tender in all payments, according to their nominal or declared values. Trebilcock v. Wilson, 12 Wall. 687, 20 L. Ed. 460. Mr. Justice Field, in writing the opinion in that case, says the Legal Tender Act of 1862 itself distinguishes between the two kinds of dollars, i. e., coin and treasury notes; and that contemporaneous and subsequent legislation of Congress has distinguished between the two kinds, recognizing that the notes and the coin were not exchangeable in the market according to their legal or nominal values." Thereon Mr. Jus-notice that the purchasing power of United tice Field says: States legal tender money (when there is no difference in its value whether specie or paper currency) is less than formerly, and so to consider it in fixing the plaintiff's damages to be awarded by their verdict? "The practice of the government has corresponded with the legislation we have mentioned. It has uniformly recognized in its fiscal affairs the distinction in value between paper currency and coin. Some of its loans are made payable specifically in coin, whilst others are payable generally in lawful money. It goes frequently into the money market, and at one time buys coin with currency, and at another time sells coin for currency. In its transactions it every day issues its checks, bills, and obligations, some of which are payable in gold, while others are payable simply in dollars. And it keeps its accounts of coin and currency dis-ard nominal value of the uniform national tinct and separate." It may be that in such cases, where loss of time or value of services is a proper element of plaintiff's damages, the evidence showing the value of his time or services so lost may involve more or less the economic conditions at the time of his injury; but such damages, like all others, are nevertheless to be reckoned on the basis of the stand currency. To say that damages may be assessed according as a jury may view the purchasing power of such currency is to say that the ever-changing price of commodities and services, bought and sold, as looked upon by the jury in each particular case, instead of the gold dollar, constitutes the standard unit of value, a position, in my judgment, so fundamentally unsound, and so dangerous to the just rights of parties, as not to be sanctioned. Under the holdings of the majority, "what a door" is opened to a jury to speculate, conjecture, and guess! In my judgment the discussions and holdings of the United States Supreme Court, in the cases to which I have called attention, conclusively show that the medium of exchange by which everything is to be measured is the gold and silver coin, "the only full legal tender money in use," and having a value regulated by Congress, which value so regulated is in law unchangeable, except by Congress under the power delegated to it by the Constitution to provide a currency of uniform legal value throughout the states of the Union. If this be not so, why is it that I would hold the rulings under discussion in every instance where the federal Supreme Court has been called upon to consider the to be reversible error, and remand the case value of depreciated paper currency in its for a new trial on the question of damages use in the payment of obligations the stand-only. ard taken has been the value of gold coin as regulated by Congress? In no instance, I believe, has the purchasing power of such currency been made the controlling factor by it in determining the matter. The same principle being applied in the cases involving Confederate notes, and foreign dollars, evidence was held to be admissible to show, not their purchasing power, but their equivalent value in lawful money of the United States. During the period of suspended specie payment, prices of commodities and of services were fluctuating, some of the time as high, perhaps, as during the World War and since; yet not within that period nor since has that SLACK, J., concurs in this dissenting opinion. Petition for New Trial. POWERS, J. [4] The defendant also brings a petition for a new trial, which was heard with the exceptions. It is a novel application in that it is predicated not upon newly discovered evidence, but newly discovered law. The claim is that the system, equipment, and property of the petitioner, including that involved in the accident in question, was, at that time, in the complete control, operation, and management of the (115 A.) if communicated to its counsel, would have made it the clear professional duty of the latter to raise these questions at the trial, and the omission to do so such negligence as to disentitle the former to relief. lution of Congress, of July 16, 1918, the Proc- | of information obtained at first hand, which lamation of the President of July 22, 1918, and the bulletin of the Postmaster General of August 1, 1918; that the employees responsible for the accident were those of the government and not of the petitioner; and that therefore the suit brought against the petitioner was, in effect, against the government, and could not be maintained; that this point was not raised at the trial, and that the law of the subject was then so unsettled and uncertain that the petitioner was excused for omitting to make this defense. This very petitioner had made these very points-or at least those that are fundamental here-in defence of a Massachusetts proceeding to enforce an order regarding intrastate rates, and had obtained therein a decision of the Supreme Judicial Court of that state in its favor, several months be fore it was tried. Public Servic Com. v. New England Tel. & Tel. Co., 232 Mass. 465, 122 N. E. 567, 4 A. L. R. 1662. The unanimous decision of that court, which left little to be said in answer to the petitioner's claim as to the law, was expressed by Chief Justice Rugg in what Chief Justice White, on June 2, 1919, when it was affirmed by the United States Supreme Court, declared to be a "lucid opinion." Macleod v. New England Tel. & Tel. Co., 250 U. S. 195, 39 Sup. Ct. 511, 63 L. Ed. 934. By that opinion it was made plain that the government had not assumed a mere public supervision over the operations We have before us, then, a record show-fore this suit was brought, and a year being a trial, full and fair, a review disclosing no error, and a petition asking that a retrial be granted to enable the defeated party to take advantage of a defense then available, but not presented through counsel's misapprehension of the law. That such an application should be looked upon with disfavor, and should not ordinarily be granted, is quite apparent. That it will not be granted except in very exceptional cases is equally so. Any negligence or other fault on the part of the petitioner or his counsel will defeat it. Webb v. State, 90 Vt. 65, 96 Atl. 599. Any less stringent rule would open the door to a practice which might overwhelm this court with applications of this character and submerge it in a fathomless sea of disputation. of private owners of telephone lines, but an absolute and complete possession and control of their systems, their equipment and appurtenances, their materials and supplies; that, this being so, the United States, though not named on the record, was the real party defendant; and that, inasmuch as a sovereign cannot be impleaded in a judicial tribunal except by its consent, the suit could not be maintained. The Massachusetts case involved the matter of rates only; but, as argued, the principles applied are those on which this petition is predicated. The Webb Case above cited is not a precedent for the petitioner; for there, the action of the court itself in some measure misled the petitioner, and he lost his opportunity for a review. And, too, each case must stand on its own merits. In re Ketchum, 92 Vt. 280, 102 Atl. 1032. In considering the merits of the petition before us we will assume that the facts set forth in it would afford a complete defense to the action against the petitioner, and that the power of this court in the matter of new trials is broad enough to warrant the relief prayed for. Even then, we think the ap-quate justification or excuse. It must have plication should be denied for lack of diligence. Several decisions, in both state and federal courts, pointing directly toward the result contended for by the petitioner here, had been handed down before the trial be low. But disregarding these, it appears that the petitioner was, at that time, in possession The failure of the petitioner or its legal department to call these decisions to the attention of its local counsel was without ade known about them; and, if it chose to allow the trial below to proceed without communicating this information to the counsel in charge of the case, it must abide the result. See Rawleigh & Co. v. Pierce, 92 Vt. 44, 102 Atl. 96. Petition dismissed, with costs. (95 Vt. 335) WATTS v. MUI.LIKEN'S ESTATE. (No. 315.) (Supreme Court of Vermont. Caledonia. Oct. 4, 1921.) 6. Appeal and error 197(2)-Objection of failure to plead an issue which was tried comes too late on appeal. The objection that plaintiff failed to avoid the plea of limitations by replication pleading fraudulent concealment could not be raised on appeal, where the issue of fraudulent concealI. Limitation of actions 104(2)-Time of ment was tried without objection as though concealment immaterial. Under G. L. 1863, as to tolling of limitations by fraudulent concealment of the cause of action, while some material fact must be concealed by positive or affirmative act as distinguished from mere silence, it is immaterial whether the concealment precedes, is concurrent with, or subsequent to the beginning of the cause of action. 2. Limitation of actions 104 (2)—Fraudulent concealment may inhere in original fraudulent act. Under G. L. 1863, as to tolling of limitations by fraudulent concealment of the cause of action, the fraud by which the concealment is accomplished need not be other than that which constitutes the cause of action, if it actually has such effect; the question being whether there was a design to prevent the discovery of the facts, and whether the act operated as a means of concealment. 3. Limitation of actions 104 (2)—Where defendant merely remains silent, question of fraudulent concealment depends on effect of the original fraud as self-concealing. Under G. L. 1863, as to tolling of limitations by fraudulent concealment of the cause of action, the effect of the original act, if fraudulent, whether operating to conceal the cause of action or not, is the controlling factor when defendant does no more than remain silent, and in such case there may be a fraudulent concealment when the act complained of is committed in a manner calculated and intended to conceal itself. 4. Limitation of actions 104(2) — Where fiduciary relation creates affirmative duty to disclose facts, silence as to wrong is an affirmative act. Under G. L. 1863, as to tolling of limitations by fraudulent concealment of the cause of action, where one against whom a cause of action arises is in such fiduciary relation to the other party to the cause of action that the former is under an affirmative duty to disclose the facts to the latter, then mere silence of the former, if it conceals the facts, is an affirmative act tolling the statute. properly pleaded. TAYLOR, J. The plaintiff appealed from the disallowance of certain claims against the estate of her brother, Gates L. Mulliken. The The trial was by court on a complaint in the Under G. L. 1863, as to tolling of limitations by fraudulent concealment of the cause of action, where plaintiff's bank deposit was withThe questions argued are raised by two drawn and converted by her brother without exceptions. The first in the order briefed her knowledge, and she did not discover the relates to a claim of $375.91 for money withfact until his death, the running of limitations on her action to recover the deposit was tolled, drawn by Gates L. from the Citizens' Savings the brother's conduct unmistakably evidencing Bank & Trust Company of St. Johnsbury on a design to prevent discovery, and his acts January 10, 1910. The facts found respectbeing calculated to operate and in fact operat-ing this claim were these: This deposit stood ing as a means of concealment. in the name of Josephine P. Mulliken (the (115 A.) plaintiff), and had been made to plaintiff's [tion on the case for deceit. The defendant, account by Gates L. in payment of what he a married man, deserted his wife in this owed her for services and otherwise, and was state and went to Massachusetts, where he her property. It was withdrawn without met the plaintiff. He represented that he right by Gates L. without any order or au- was single and deceived her into a void thority from the plaintiff, and without her marriage. The plaintiff lived with the deknowledge, consent, or approval, and the fendant as his wife for more than 30 years, money appropriated to his own use. Nothing bore him children, and assisted in the accumwas said to the plaintiff to lead her to un-ulation of a large amount of property. Subderstand that the money had been with- sequent to his marriage to the plaintiff, the drawn, and she had reason to believe and lawful wife secured a divorce in Vermont, did believe that it remained in the bank to but the plaintiff was ignorant of her marher credit. She did not discover that it had riage status until shortly before the suit was been withdrawn until after the death of brought. The defendant relied upon the Gates L. in February, 1919. The plaintiff statute of limitations, and the question was relied upon the claim that in the circum- when the cause of action accrued, and, if the stances the statute of limitations would not cause of action was complete at the time of begin to run until the discovery of the cause the marriage, what effect the concealment of of action both at common law and by virtue the fraud had upon the rights of the plaintiff of our statute. in respect to the statute of limitations. A majority of the court held that the defendant's representations were continuous, that it was a continuing fraud, and that the cause of action did not accrue in the circumstances until the fraud was discovered. Referring to plaintiff's claim that "active concealment of the fraud subsequent to the marriage" was an answer to the plea of the statute, the måjority say that, while they think the claim is tenable, in view of their holding there was [1] G. L. 1863, provides: "If a person entitled to bring a personal action is prevented from so doing by the fraudulent concealment of the cause of such action by the person against whom it lies, the period prior to the discovery of such cause of action shall be excluded in determining the time limited for the commencement thereof." This statute was enacted in 1917 (No. 78, Acts of 1917), and is now for the first time before the court for construction. It will be well at the outset to note the state of the law on the subject in this jurisdiction prior to the passage of the statute. It was early held that the statute of limitations does not run in chancery against an equity the grounds of which have been kept out of sight by the fraud of the party pleading the statute. Payne v. Hathaway, 3 Vt. 212. In Smith v. Bishop, 9 Vt. 110, 31 Am. Dec. 607, the question arose as to whether the statute of limitations was a bar to an action at law for deceit committed more than six years before the action was brought, where the fraud was not discovered until within the period of limitation. The case was heard on demurrer to a replication which sought to avoid the statute on the ground that the fraud charged in the declaration was not discovered until a time less than six years before the bringing of the action. In a well-reasoned opinion by Phelps. J., the court held that the demurrer was properly sustained. It is pointed out that the rule at law and in chancery is not the same. The doctrine approved by some courts that fraud will take a case at law out of the statute is expressly repudiated as a rule of general application, though it is intimated that it might apply under circumstances deserving of special consideration. Apparently not until Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411, was the court again called upon to consider the effect of concealment of the fraud charged upon no occasion to consider the effect of the con cealment of the fraud to defeat the running of the statute, nor the want of a replication to the plea. In the dissenting opinion by Rowell, J., in which Munson, J., concurred, the point is made that the question argued was not whether the statute began to run from the discovery of the fraud out of which the cause of action grew, but whether the subsequent concealment of the fraud was an answer to the statute. However, the dissent was from the holding in effect that, inasmuch as the defendant's fraudulent representations were continuous, they were indivisible in point of time, and hence altogether constituted but one cause of action, which did not accrue until they ceased on discovery, and consequently that recovery might be had for the whole time. The question whether the fraudulent concealment shown subsequent to the marriage was sufficient to toll the statute was not discussed, and, as we have seen, not decided, though countenance is given to the rule, supported by the weight of authority in this country, that the statute does not at law run during the time that the defendant fraudulently conceals from the plaintiff the facts constituting the cause of action. It would seem that G. L. 1863, is merely declaratory of the common law as recognized by this court, enacted, it may be, for the purpose of removing any doubt to be implied from the decisions. However this may be, the statute is now our only guide in solving the question presented here. It defines the exception [3] Some courts make a distinction between cases where the basis of the action is not actual fraud and those where it is, hold the case in hand, and manifestly the plain- | of another by actual fraudulent concealment tiff's claim is barred unless she has brought prevents such others from obtaining knowlherself within the exception. In terms the edge thereof, or the fraud is of such a charexcepting statute makes fraudulent conceal-acter as to conceal itself, the statute of limiment of the cause of action, of a character tations will begin to run from the time the calculated to prevent the bringing of an ac- right of action is discovered, or by the exertion, essential to the postponement of the cise of ordinary diligence might have been statute of limitations. The difficulty arises discovered. when the cause of action itself springs from the fraudulent act of the defendant. It is not always an easy matter to distinguish between the fraud that is the gist of the actioning in the latter that the mere silence of the and fraud that conceals the cause of action. Many states have similar statutes which have been before the courts for construction. There is little disagreement in their decisions. In the absence of a fiduciary relation, or a relation of trust and confidence imposing a duty to disclose, the rule generally followed is that the concealment of a cause of action which will prevent the operation of the statute of limitations must be something of an affirmative character designed to prevent, and which does prevent, the discovery of the cause of action. Mere silence by the person liable is not sufficient, but such concealment must consist of affirmative acts or representations. Lancaster v. Springer, 239 Ill. 472, 88 N. E. 272; Terry v. Davenport, 185 Ind. 561, 112 N. E. 998; Waugh v. Guthrie Gas, etc., Co., 37 Okl. 239, 131 Pac. 174; L. R. A. 1917B, 1253; Oklahoma Farm Mtg. Co. v. Jordan (Okl.) 168 Pac. 1029; Smith v. Blachley, 198 Pa. 173, 47 Atl. 985, 53 L. R. A. 849; Van Ingin v. Duffin, 158 Ala. 318, 48 South. 507, 132 Am. St. Rep. 29; 25 Cyc. 1218. Such in effect is the holding in Massachusetts, which has a statute practically identical with ours. O'Brien v. McSherry, 222 Mass. 147, 109 N. E. 904. as defendant is a continuation of the original fraud, constituting a fraudulent concealment. Am. Nat. Bk. v. Fidelity, etc., Co., 131 Ga. 854, 63 S. E. 622, 21 L. R. A. (N. S.) 962, and note; 17 R. C. L. 861, § 220. We do not think that our statute is capable of such a construction. It seems more logical to say that the effect of the original fraud, whether operating to conceal the cause of action or not, is the controlling factor under such a statute when the defendant does no more than to remain silent. Mere silence is not fraudulent unless the defendant is charged with the duty of speaking. The statute can be given the full force intended by holding that there may be a fraudulent concealment of the cause of action in contemplation of its provisions when the act complained of is committed in a manner calculated and intended to conceal itself. [4] As already intimated, there is a wellrecognized exception to the general rule that the fraudulent concealment of a cause of action which will postpone the running of the statute of limitations must consist of some affirmative act. Concealment of facts by one whose duty it is to disclose them is deemed to be fraudulent. Alter v. Smith, 245 Ill. 57, 91 N. E. 776, 19 Ann. Cas. 105. Thus it has been held to constitute fraudulent concealment sufficient to toll the statute where a relation of trust and confidence exists between the parties, making it the duty of the defendant to disclose the true state of the case to the plaintiff (Wilson v. Ivy, 32 Miss. 233), or where a cause of action is fraudulently concealed by one acting in a confidential business relation (Tompkins v. Hollister, 60 Mich. 470, 27 N. W. 651), or, in short, in any case where it is the duty of the defendant to make known a breach of trust or confidence (Am. Nat. Bk. v. Fidelity & Deposit Co., 131 Ga. 854, 63 S. E. 622, 21 L. R. A. [N. S.] 962). See, also, Atlantic Bank v. Harris, 118 Mass. 147; Old Dominion, etc., Co. v. Bigelow, 203 Mass. 159, 89 N. E. 193, 40 L. R. A. (N. S.) 314. [2] While some material fact must be concealed by positive or affirmative act distinguished from mere silence, it is immaterial whether the concealment precedes, is concurrent with, or subsequent to, the beginning of the cause of action. Hall v. Penn. R. Co., 257 Pa. 54, 100 Atl. 1035, L. R. A. 1917F, 414. Indeed, the fraud by which the concealment is accomplished need not be other than that which constitutes the cause of action, if it actually has such effect. Way v. Cutting, 20 N. H. 187; Quimby v. Blackey, 63 N. H. 77; Kelley v. Nealley, 76 Me. 71; P. H. Sheehy Co. v. Eastern Imp. & Mfg. Co., 44 App. D. C. 107, L. R. A. 1916F, 810; U. S. v. Woolley (D. C.) 262 Fed. 518. The question is whether there was a design to prevent the discovery of the facts which gave rise to the action and whether the act operated as a means of concealment. Hall v. Penn. R. [5] The findings are meager on the subject Co., supra; Whitesell v. Strickler, 167 Ind. of the relations between the plaintiff and her 602, 78 N. E. 845, 119 Am. St. Rep. 524, 17 R. brother, but enough is disclosed to make it C. L. 863. It is said in 17 R. C. L. 857, that at least probable that they were so far conthe general trend of the decisions is in sup-fidential as to render fraudulent the latter's port of the rule that, where a party against failure to disclose the withdrawal of the de |