Ferrell Prior appeals from a judgment entered on the verdict of a jury assessing damages against him for the violation of § 17(a) of the Securities Act of 1933 (15 U.S.C. § 77q(a)).1 The evidence established that Prior had misrepresented and failed to disclose material facts in selling oil and gas production interests to eight syndicates of investors. There is no question about the adequacy of the proof or the measure of damages. Prior contends, though, that process was defective, that § 17 creates no private cause of action, that the investors' claims are barred by the statute of limitations, that the suit should not be maintained as a class action, and that members of the class were not properly notified. We affirm but remand the case for correction of a clerical omission in the judgment.

* Prior alleged that the summons was defective because its caption indicated the parties only by the reference "see complaint." A copy of the complaint, with the names of all parties, was attached to the summons. Contrary to the preliminary pretrial order, Prior neither moved to dismiss for defective process nor sought to have the summons amended. Although the summons did not literally comply with Federal Rules of Civil Procedure 4(b), Prior has not been prejudiced by the defect. Accordingly, the error is harmless. Fed.R.Civ.P. 61; cf. United States v. A. H. Fischer Lumber Co., 162 F.2d 872 (4th Cir. 1947). See generally 4 Wright and Miller, Federal Practice and Procedure §§ 1088 and 1131 (1969).

Although there is authority to the contrary, this circuit is committed to the rule that § 17(a) supports a private damage claim for the fraudulent sale of a security. Johns Hopkins University v. Hutton, 488 F.2d 912 (4th Cir. 1973); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964). See generally 6 Loss, Securities Regulation 3913 (1969). Therefore, the district court correctly submitted the case to the jury.

Prior contends that the period of limitations for actions brought under § 17(a) is governed by § 13 of the 1933 Act (15 U.S.C. § 77m).2 However, § 13, by its terms, applies only to actions based on §§ 11 and 12(2) of the Act (15 U.S.C. §§ 77k and 77l (2)). Consequently, federal courts must apply an analogous statute of limitations of the forum state to § 17(a) actions. Sackett v. Beaman, 399 F.2d 884, 890 (9th Cir. 1968); cf. United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966).

Virginia has three limitation periods for causes of action arising out of fraud. Virginia Code § 8-24 provides a five-year statute of limitations for wrongs which survive the death of a party and a one-year period for those that do not. Actions for wrongs, including fraud, which indirectly injure property do not survive, and the one-year limitation applies. Carva Food Corp. v. Dawley, 202 Va. 543, 118 S.E.2d 664 (1961); Vance v. Maytag Sales Corp., 159 Va. 373, 165 S.E.2d 393 (1932). If a fraud directly injures real or personal property, the action survives and the five-year limitation applies. Westover Court Corp. v. Eley, 185 Va. 718, 40 S.E.2d 177 (1946). In Westover the court applied the five-year limitation in a suit arising out of the fraudulent description of property sold to the plaintiff. This is similar to the situation now before us, and were we limited to relying on § 8-24, we would adopt the five-year limitation.

Virginia's blue sky law, however, has a two-year period of limitations for actions arising out of the fraudulent sale of securities. Both the state statute and § 17(a) proscribe the same conduct.3 In addition, the two-year period is closer to limitations on actions under other sections of the federal securities laws than the Virginia five-year period.4 We hold, therefore, that federal policy is best served by applying the state blue sky law's two-year statute of limitations to a suit involving the fraudulent sale of securities.5 Accord, Maine v. Leonard, 353 F. Supp. 968 (W.D.Va.1973); see Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir. 1970). See also United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 705-07, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966).

Even when state law furnishes the period of limitation, federal law controls its commencement. The statute does not begin to run until the fraud is either actually known or should have been discovered by the exercise of due diligence. Vanderboom v. Sexton, 422 F.2d 1233, 1240 (8th Cir. 1970); Maine v. Leonard, 353 F. Supp. 968, 971 (W.D.Va.1973); see Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S. Ct. 582, 90 L. Ed. 743 (1946). When conflicting inferences can be drawn from the facts, the question of when the fraud should have been discovered must be submitted to the jury. Johns Hopkins University v. Hutton, 422 F.2d 1124, 1131 (4th Cir. 1970). But here the record conclusively establishes that the action is not barred by the two-year statute. The sellers filed the first prospectus for a production interest with the Securities Exchange Commission on January 28, 1970. They filed others pertaining to different wells during the next eight months. The purchasers instituted suit on April 17, 1972. However, there is no evidence that the purchasers discovered, or in the exercise of due diligence should have discovered, the fraud in the interval between January 28 and April 17, 1970. The court, therefore, was not obliged to submit this issue to the jury.

Prior did not object to the district court's determination that this suit should proceed as a class action, nor did he protest the court's directions for issuing notice by first class mail at the plaintiffs' expense to members of the class at their last known addresses, as shown on the seller's ledgers. Prior, therefore, cannot complain on appeal about these aspects of the case. See Wilson Clinic and Hospital v. Blue Cross of South Carolina, 494 F.2d 50, 53 n.4 (4th Cir. 1974).

However, the record in this case does not clearly identify the members of the class. While plaintiffs' counsel informally advised the district court that the required notice had been given, the court's files contain neither a copy of the notice nor a certificate that it was sent. In addition, the judgment does not "specify or describe those to whom the notice . . . was directed, and who have not requested exclusion, and whom the court finds to be members of the class," as required by Rule 23(c)(3). These omissions, we were informed at oral argument, result from the oversight of counsel and may be remedied without difficulty.6 Although the judgment is affirmed, we remand the case to the district court so that the omissions in the record may be corrected and the judgment amended. Fed.R.Civ.P. 60(a); see United States v. Stuart, 392 F.2d 60, 62 (3rd Cir. 1968).