Page images
PDF
EPUB

3 J. J. Marsh. 600, 20 Am. Dec. 179, and confined in operation to the District of Comore recently in Calloway v. Glenn, 105 Ky. lumbia. The lex loci contractus does not 651, 49 S. W. 440, in which the conclusion apply. ... Imprisonment is a part of was reached that the judgments and decrees the remedy, not of the contract. ... The of a sister state were entitled to precisely defendant cannot be imprisoned there; but the same effect in this state as they would it does not follow that he is exempt from have had by the laws of the state wherein imprisonment in this state.

The they were rendered. It follows that, if same principle has been repeatedly acted the judgment relied on in this case would be upon by this court in relation to the statconclusive of the plaintiff's cause of action ute of limitations of adjoining states (Nash on its merits in the state of New York, it v. Tupper, 1 Caines, 402, 2 Am. Dec. 197), must be conclusive here.

even where the contract arose and both parCounsel for appellant contends that the

ties resided there.... And a long and courts of New York hold that the statutes unbroken series of decisions has denied any of limitation of that state operate exclu- effect to these personal discharges beyond sively upon the remedy, and do not in any

the boundaries of the state where they are respect affect the cause of action, and that

granted, upon the principle that the a judgment for defendant rendered upon the statutes under which they are granted are plea of the statute of limitations in one

inapplicable as a part of the lex loci conjurisdiction is not a bar to another suit tractus, but constitute a part of the ler fori upon the same cause of action elsewhere,

merely.

The case principally relied and that this holding of the New York on by the defendant's counsel is Hicks v. courts is the generally accepted construction Brown, 12 Johns. 142. That case gave effect of the statute of limitation both in England to a New Orleans discharge, which extended and in the various states of the United both to the person and contract of the States; and in support of this contention he debtor; and the principle of that case was has collated in his brief numerous authori. again recognized by this court in Sherrill ties, to which our attention has been di- v. Hopkins, 1 Cow. 103. Both cases are rected. First is the case of Whittemore v. plainly distinguishable in this particular Adams, 2 Cow. 626, a case decided by the from the present. They go beyond imprissupreme court of New York. The action onnent, the mere remedy to the contract was upon divers promissory notes, the plead- itself. : : : Nor is this discharge operaings admitting the indebtedness. Under the tive within the clause of the Constitution laws of New York the person of the debtor which declares that full faith, credit, and might be taken under execution, and imeffect shall be given to it as a judicial proprisoned, etc. To avoid the imprisonment ceeding of another state.” This case was in consequence of a judgment, the defendant approved in Stern v. Schlesinger, 25 N. Y. pleaded an act of the District of Columbia S. R. 853, 5 N. Y. Supp. 1, and the followfor the relief of insolvent debtors, by com ing is taken from the statement of facts in plying with the provisions of which the per

the latter case: “An order of arrest was son of said debtors were exempt from im- granted herein, and defendant's motion to prisonment. The defendant alleged prior vacate on the grounds that, having been ar. imprisonment and discharge under said act. rested in Michigan on the same cause of And the court, in passing upon the issues action, he could not be again arrested on it thus joined, said: “The defendant relies in New York, and that, the action being on upon an insolvent discharge granted pursu- a foreign judgment, the cause of action was ant to an act of the Congress of the United merged, and there could be no arrest, was States for the relief of insolvent debtors denied. Defendant now moves to vacate the within the District of Columbia. 6 U. S. order on affidavits showing that defendant Laws, old ed. p. 294. The 10th section of took the 'poor debtor's oath' in Michigan, that act (Id. p. 300] declares its effect. If and was there discharged from imprisona debtor is arrested for any debt contracted ment, after opposition offered by the credbefore the discharge, the court issuing the itor, and that the effect of such discharge process, or a judge, are to release him on under the laws of Michigan is to forever excommon bail.

Giving to this dis- empt the defendant from imprisonment on charge all the effect which can possibly be the same cause of action.” In the course claimed under the act of Congress, it does of the opinion the court said: “The poor not operate upon the contract, but merely debtor's act of Michigan (2 How. Anno. upon the mode of enforcing it. It is a per- Stat. chap. 309) is a beneficent statute, sonal discharge of the defendant,-nothing under which impecunious debtors may be more; and must, from its very nature, be relieved from imprisonment. The discharge

.

does not affect the debt, which remains un- These cases announce the rule that the impaired, but terminates the imprisonment, lex fori always governs the remedy, and that and provides that “the debtor, after being so judgment based upon statutes which operdischarged, shall be forever exempted from ate simply upon the remedy do not affect arrest or imprisonment for the same debt.' the cause of action. In the case of Bank of The effect of the discharge under this en- United States v. Donnally, 8 Pet. 361, 8 actment was to prevent a second arrest 'in L. ed. 974, the suit was upon a promissory that state for the same debt. The act can note executed in Kentucky, and payable have no greater effect, for it has no extra there, on which suit was commenced in the territorial force, and cannot be invoked here. district court for the western district of True, the creditor opposed the discharge, Virginia. Among other defenses, the debut this circumstance adds nothing to the fendant pleaded the statute of Virginia in extraterritorial operation of the statute. If bar of the action. In consideration of this the proceedings under the act in question defense the counsel for the plaintiff urged had discharged the debt or obligation, and the following for the consideration of the the creditor had entered the foreign jurisdiction and there contested the dischargc, Sergeant, in reply, urged upon the court the

Supreme Court of the United States: "Mr a different question would have been presented; for a debt once lawfully extin. propriety of leaving to the plaintiffs in guished in Michigan by payment or opera- suit be brought upon it in the state of Ken

error their remedy on the note should a tion of law is, as a rule, discharged every. where.

If the court should A discharge from debte granted tucky or elsewhere. under the laws of one state may be inopera consider the limitation law of Virginia as tive on the citizens of other states, unless governing the case, they would apply that the obligations are to be performed in the law, by their judgment, to the remedy which place where the discharge was granted. had been sought by this suit in Virginia, ... Yet where such citizens submit them- and not give such a judgment as would imselves to the jurisdiction of the foreign law pair the plaintiffs' right elsewhere. by voluntarily becoming parties to the pro- He contended that the sole ground of the ceedings there pending, they may be con cases cited for the defendant was the effect cluded by the adjudication made. Soule v. of the statutes of limitations upon the remChase, 39 N. Y. 342. But the application edy. They do not decide that the right to made in Michigan did not affect the debt. the debt is destroyed by the lapse of time.” It merely affected the remedy provided for In response to this question so urged upon its enforcement in that state, and the dis- the consideration of the court, Justice Story charge from imprisonment granted therein (on p. 370, L. ed. p. 977) said: “As the merely put an end to the right to imprison contract upon which the original suit was the debtor within that jurisdiction. Im- brought was made in Kentucky, and is prisonment is no part of the contract, and, sought to be enforced in the state of Vir. notwithstanding the discharge in Michigan, ginia, the decision of the case in favor of the the debt remained unimpaired, and the right defendant upon the plea of the statute of to enforce it in other jurisdictions, accord- limitations will operate as a bar to a subseing to the laws thereof, followed the obliga- quent suit in the same state; but not necestion as a legal incident, for the lex fori sarily as an extinguishment of the contract always governs the remedy.

In elsewhere, and especially in Kentucky. But other words, the remedial statutes of other a general judgment in favor of the defendstates in no manner affect or concern us in ant upon his demurrer to the declaration the manner of executing our laws. Each (it is supposed) may, as a judgment upon state enforces its provisional remedies ac- the merits of the claim, have a very differcording to its own peculiar methods. Oblient operation as a res judicata or final judggations are determined and contracts con- ment. Hence there arises a very important strued with reference to the law of the place consideration as to the correctness of the where they were made or are to be per- judgment upon that demurrer.

It has acformed. But when we come to remedies it cordingly been argued at large by the counis another thing. .. A discharge from sel for the bank as vital to the rights as imprisonment relates only to the remedy, well as to the remedies of the bank in other and not to the contract or obligation. It is states. We are of the opinion that the limited in its object and local in its effect, fourth and fifth counts are upon general having no force beyond the bounda of the demurrer good; and that the judgment of state where it was granted, and the creditor the court below was as to them erroneous. is entitled to all the remedies provided by .. Upon the whole our opinion is that the lex fori."

the judgment upon the demurrer by the

defendant to the fourth and fifth counts | passing that a judgment for the defendant ought to be reversed, and that in all other upon a plea of the statute of limitations respects it ought to be affirmed. But, as will not prevent another suit upon the same the plea of the statute of limitations is a transaction elsewhere.” Mr. Foote, in his good bar to all the counts, the judgment of work on Private International Jurispruthe court below that the plaintiff's take dence (p. 512), in speaking of laws which nothing by their writ is right, and ought to limit the time for the enforcement of a be affirmed with costs.” On the same page civil remedy, says: "So exclusively is such then (loc. cit. 374, L. ed. 979) is found the a law matter of procedure that a foreign form of the judgment directed to be entered judgment declaring that a claim is barred by the court, which reversed the judgment by a local statute of limitations is no bar entered "on the merits,” or professedly on to an action in the tribunals of another the merits, and the judgment is made to state, the laws of which fix a longer term show upon what ground it is based, to wit, of limitation of suit on the original cause that it went upon the plea of the statutes of of action. In such a case the maxim, Nemo limitations. In the case of Brent v. Bank bis debet verari pro eadem causa, does not of Washington, 10 Pet. 596, 9 L. ed. 547, in apply, the plea upon which the foreign judg. discussing this question, Judge Baldwin, ment has been given not going to the merits speaking for the court, said: “But they of the cause of action." Mr. Dicey, in his allege that the debt is extinguished by the work on Conflict of Laws (p. 422), says: verdict in their favor rendered on a plea “A foreign judgment in favor of the defendof the statute of limitations. In Bank of ant in the foreign action is a complete anUnited States v. Donnally, 8 Pet. 361, 8swer to any proceedings here for the same L. ed. 974, this court laid it down as an matter by the plaintiff in such action, proestablished principle that the act of limi- vided that the judgment be final and contations operated only to bar the remedy, clusive on the merits; but it is not an not to extinguish the right or cause of ac- answer to an action in England, if it be tion; and that a judgment on a plea of the merely an interlocutory judgment, or a statute was only to bar the remedy on a judgment which, though it decides the cause contract when sued for in Virginia, as the finally in the country where it is brought, limitation act of that state embraced the does not purport to decide it on the merits, one declared on; but did not operate to ex- e. g., if it is given in favor of the defendant tinguish the contract when sued for else on the ground that the action is barred by a where, or in Kentucky, where by the lex statute of limitations." loci it was not affected by any limitation. Whilst the adjudication of courts of last ..

We cannot take this case out of this resort in the United States on this question established rule: The legal remedy is are not entirely uniform, we think it cannot barred, but the debt remains as an unextin- be denied that the overwhelming weight of guished right; and the bank, when called authority is to the effect that a judgment into a court of equity, may hold to any rendered on the plea of the statute of limitaequitable lien or other means in their hands tions in one jurisdiction does not bar an. till it is discharged.” In Jacobs v. Marks, other jurisdiction having a different statute 182 U. S. 591, 45 L. ed. 1246, 21 Sup. Ct. of limitation, and this is undoubtedly the Rep. 865, the court had before it the ques- rule in New York. It follows, therefore, tion whether a judgment rendered in the that the only effect which we can give the court of Michigan had received full faith New York judgment is that it conclusively and credit in the courts of Illinois, and the establishes that the plaintiff had under the court said: “It is a general rule that a plea laws of that state no remedy for the enof former recovery, whether it be by confes-forcement of her claim, but that that judg. sion, verdict, or demurrer, is a bar to any ment did not extinguish her “cause of acnew action of the same or the like nature tion" in the courts of Kentucky, where a for the same cause. This rule conforms to different statute of limitation prevails. the policy of the law which requires an end For reasons indicated,the judgment is reto the litigation after its merits have versed on appeal of the plaintiff, and afbeen determined. But there must be at firmed on cross-appeal of defendant, and least one decision on the right between the cause remanded, with direction to overrule parties before there can be said to be a ter- defendant's demurrer to plaintiff's reply and mination of the controversy, and before a for other proceedings consistent with this judgment can avail as a bar to a subsequent opinion. suit.” In Minor on Conflict of Laws, $ 210, the author says:

“It may be observed in Petition for rehearing denied.

UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT.

[ocr errors]

not

pre

CENTRAL STOCK YARDS COMPANY, | recognize the right of the consignor and the Appt.,

consignee to change at any of the stations

of the said company the destination of said LOUISVILLE & NASHVILLE RAILROAD shipment, so as to make delivery in the COMPANY.

manner agreed upon at a point of physical (55 C. C. A. 63, 118 Fed. 113.)

connection between the lines of the Southern 1. No common-law duty rests apon a

Railway Company and the Louisville & common carrier to deliver a ship- Nashville Railroad Company for delivery to per's Jive stuck to a connecting car- said Central stock yards; also seeking a rier in order that it may reach a certain temporary injunction and damages in the stock yard in the city to which it is con- sum of $3,000. The Central Stock Yards signed, if the carrier has contracted for ade- Company is a duly organized corporation quate facilities for handling the stock in another yard in the same city.

authorized to conduct a general business in 2. A railroad company

the state of Kentucky. The Louisville & vented from making an exclusive Nashville railroad operates in the states of contract for the care of live stock shipped Kentucky, Tennessee, Alabama, Georgia, over its road with one stock yard by $ 3 of Mississippi, Louisiana, Florida, Indiana, the Interstate Commerce Act, which makes it and Illinois as a common carrier. The Cenunlawful for a carrier to give unreasonable tral Stock Yards Company has located its

preference to any person or corporation. 3. A state cannot require the delivery plant just outside the city of Louisville,

of interstate freight by one carrier to an. where it has facilities for receiving, unloadother within its borders in order that the ing, feeding, and caring for live stock. This freight may reach a particular depot within a plant is about 9 miles from the terminus certain municipality.

of the Southern railroad in the city of (July 8, 1902.)

Louisville. It is further alleged that the APPEAL. by complainant from a judgment Southern Railway Company has established States for the Western District of Ken- yards,” at or near the location of the plant. tucky in favor of defendant in a suit to com: The situation may be shown in a general pel defendant to deliver stock received by way by the rough draft shown on next page. it for transportation, and billed to com- The points of physical connection between plainant's yards, to a connecting carrier the lines of the Southern Railway Company upon its arrival at the city of destination, and the lines of the defendant are shown at so that it could be delivered as directed. F, B, and C, of the diagram. The defendant Affirmed.

company refused to receive stock from Statement by Day, Circuit Judge: points outside the state of Kentucky billed

This is a bill filed by the stock-yards to the Central Stock Yards Company, or company against the railroad company to any person in its care, asserting the seeking a mandatory injunction 'requiring right to deliver all live stock designated for the railroad company to receive,' transfer, Louisville passing over its own lines at the transport, and deliver shipments of live Bourbon Stock Yards, shown on the map stock tendered to it outside the state of at H, with which company the defendant Kentucky, consigned or tendered to be con- has a contract,—the Louisville & Nashville signed to any points of physical connection Railroad Company agreeing that it would between its line and the line of the South- not lease, rent, or sell within the city of ern Railway Company in Kentucky, and Louisville for the establishment of any other designated for the Central stock yards or stock yards, or establish any other stock its station in Kentucky; and in like manner yards within or adjacent to said city; that to deliver, transport, and transfer such con- it will deliver, and cause to be delivered, so signment to any person to whom it may be far as it legally may, all live stock shipped billed at said stock yards; and, further, to over the lines of the defendant company

NOTE.-As to power of states to interfere consigned to the city of Louisville, and will with interstate commerce by requiring trains to load all stock for other persons at said city stop at stations, see, in addition to authorities at said yards; providing that, if the terms cited by the court in the above case, the decisions in Illinois C. R. Co. v. People, 19 L. R. A. of such agreement should be invalidated by 119, and State v. Gladson, 24 L. R. A. 502. any judgment or order of the court, or by

As to state statute requiring shipment of legislative requirement, then the stockfreight within specified time, see Bagg v. Wil yards company should have no claims for mington, C. & A. R. Co. 14 L. R. A. 596. As to state statute restricting Sunday trains,

damages against the railroad company aris

The see Norfolk & W. R. Co. v. Com. 13 L. R. A. 107, ing out of the terms of the contract. Overruled in 34 L. R. A. 105.

Central Stock Yards Company is a corporation, and was established by an agreement & Gibson, and Helm, Bruce, & Helm, with the Southern Railway Company, mak- for appellee: ing it the stock yards of that company in When a statute creates a new right, and Louisville and vicinity. It is claimed that at the same time specifies a particular remthe complainant has a right to compel the edy for the vindication of that right, this shipment of live stock and transfer of cars remedy will be considered to be exclusive of consigned to the Central Stock Yards Com- all others, unless words are expressly used pany at one of the points of physical con- to the contrary. nection with the Southern railway upon Stafford v. Ingersol, 3 Hill, 39; Farmers' three grounds: (1) That such is the legal & M. Nat. Bank v. Dearing, 91 U, S. 35, 23 duty of the defendant company as a com. L. ed 199; Barnet v. Muncie Nat. Bank, 98 mon carrier; (2) because of the require U. S. 555, 25 L. ed. 212. ments of the Act to Regulate Commerce, If the rights asserted by complainant in passed by the Congress of the United States this suit do not exist upon common-law on February 4, 1887, known as the “Inter principles, and if it is compelled to rely state Commerce Act;” (3) by amended bill, upon the Interstate Commerce Act for the that such is the duty of the corporation creation of such rights, then it has no right under the Constitution and laws of the state to enforce the same by a suit in equity. of Kentucky. The circuit court dismissed Pidcock v. Harrington, 64 Fed. 821 ; Gulf, the application for a temporary injunction, C. & 8. F. R. Co. v. Miami s. s. Co. 30 C. and afterwards dismissed the bill for want C. A. 142, 52 U. S. App. 732, 86 Fed. 407; of jurisdiction in equity. Complainant ap. Southern Indiana Exp. Co. v. United States peals.

Exp. Co. 88 Fed. 659.

There is no contract of any kind between Argued before Lurton, Day, and Severens, the Louisville & Nashville Railroad ComCircuit Judges.

pany and the Central Stock Yards Com. Messrs. J. C. Dodd and W. M. Smith pany. It is not even alleged that any owner for appellant.

of live stock has ever attempted to ship live Messrs. H. W. Bruce, Charles N. stock to the Central Stock Yards Company Burch, Ed. Baxter, Gibson, Marshall, as a consignee.

[ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors]

SOUT

CENTRAC

SY.

LOUISVILLE A.-South Louisville.

F.-Bergen & Meehan Switch. B.-Fourth Street Crossing Southern Railway G. -Central Stock Yards. and Louisville & Nashville.

H. Bourbon Stock Yards. C.-Magnolia Avenue connection.

Red Lines-Louisville & Nashville Railroad. D.-Louisville & Nashville Kentucky Street

[The red lines are indicated by the Yards.

dotted lines. ] B.-Junction of two Southern Railway lines. Black Lines--Southern Railway.

« PreviousContinue »