# McCluny v. Silliman

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United States Supreme Court
28 U.S. 270
MSCluny v. Silliman
ERROR to the circuit court of Ohio.
In the circuit court of Ohio, the plaintiff in error instituted a suit on the 15th of Desember 1823, against the defendant, who was register of the United States land office at Zanesville, to recover damages for having, as register, refused to enter an application in the books of his office, for certain lands in his district; the entry having been required to be made according to the provisions of the tenth section of the act of congress, passed the 18th of May 1796, entitled 'an act providing for the sale of the lands of the United States, in the territory north west of the river Ohio, and above the mouth of the Kentucky river.' The declaration charges, that the register, on the 2d of August 1810, refused to enter the application, although the lands had never been legally applied for or sold, and were then liable to be applied for and sold.
The defendant pleaded not guilty, and not guilty within six years before the commencement of the suit. To the latter plea there was a demurrer, and joinder in demurrer. The circuit court overruled the demurrer, and sustained the plea of the statute of limitations. The plaintiff prosecuted this writ of error; and sought to reverse the judgment on the grounds:
1. That the statute of limitations does not apply to an action upon the case brought for an act of nonfeasance or misfeasance in office.
2. That no statute of limitations of the state of Ohio, then in force, is pleadable to an action upon the case brought by a citizen of one state against a citizen of another, in the circuit court of the United States for malfeasance or nonfeasance in office, in a ministerial officer of the general government; and especially where the plaintiff's rights accrued to him under a law of congress.
Mr Doddridge, for the plaintiff in error, argued, that there are many cases within the words of the statute of 21 James I. ch. 16, for limitation of personal actions, which are not within its meaning; as debt against a sheriff for an escape; debt against a sheriff for money levied; actions ex maleficio; debt for not setting out tithes under the statute, although founded on the highest record, an act of parliament; debt on award, although founded on contract. 1 Saund. Rep. tit. Statute. 5 Bac. 509. 2 Lev. 191. Esp. N. P. 653.
Out of the clause limiting actions for words, are excepted, slander of title; scandalum magnatum. Cro. Ch. 141. Esp. N. P. 519.
The statute does not extend to trusts, to charities or to legacies. 3 Bac. Ab. 510. 2 Lord Ray. 852, 935. 1204. Salk. 361, pl. 11. 5 Mod. 308. 1 Wash. 145. 4 Munf. 222.
Statutes of limitation are leges fori; and it rests with the sovereign power of the state to say how far the interests of the society it represents require that its own courts shall be kept open to give redress in each particular case, or whether these shall be any limitation of personal actions. It peculiarly belongs to each government to say how long its ministerial officers shall be exposed to the claims of those who consider themselves aggrieved by their acts of mis-feasance or nonfeasance; consequently, in such cases, the statutes of limitation of one state cannot be pleaded in bar in the courts of another state. 2 Mass. 84. 1 Caines, 402. 3 johns. 261, 263. 2 Johns. 198. 2 Vern. 540. 13 East, 439, 450. 7 Mass. 515. 3 Johns. Ch. Rep. 217, 219. 17 Mass. 55.
Neither in Virginia, nor in Pennsylvania, nor in New York, are cases found of a plea of the statute of limitations in an action arising ex maleficio. It is claimed, that the right to such a plea does not exist in the courts of either of those states. There are no cases in this court. In all those in which the plea of the statute of limitations has been sustained, the statutes of the state have been pleaded to suits in the federal courts. 2 Cranch, 272, 1 Condensed Rep. 411. Hopkirk vs. Bell, 3 Cranch, 454, 1 Condensed Rep. 595. Mandeville et al. vs. Wilson. 5 Cranch, 15. 7 Cranch, 156. 8 Cranch, 84. 3 Wheat. 541. 5 Wheat. 124. 6 Wheat. 481, 497.
The nature of the case prevents there being a state decision in affirmance of the principles claimed for the plaintiff in error. The question is no more or less than this: where a duty is created by an act of congress, to be performed by a ministerial officer of the general government, for the benefit of a citizen of another state, whose rights grow out of the same law, and the injured party, as a citizen of another state, sues the officer in a federal court for malfeasance or for nonfeasance; can that officer plead in bar a statute of the state made for the protection of its own ministerial officers?The circuit court in the trial of civil actions arising under the law of a state, or cognizable by its courts, where a citizen of another state or a foreigner is plaintiff, act precisely as a state court, and is bound to interpret and enforce its laws as they are made to operate in the state courts.
If the law of Ohio can be pleaded at all, it is the act of the 24th of January 1810, which went into operation the 1st of June 1810; the act which is the cause of action in this suit having been done in August 1810. That law, 4 Ohio Laws, page 62, sect. 1, provides 'that all actions of trespass for assault, menace, battery, or wounding, actions of slander for words spoken or libel, or false imprisonment, shall be brought within one year next after the cause of such actions or suits; and all actions upon book accounts, and for forcible entry and detainer, shall be brought within four years next after the cause of such actions and suits; and all actions of trespass upon real property, trespass, detinue, trover and conversion, and replevin, all actions on the case, or of debt for rent, shall be sued or brought within six years next after the cause of such action arose.'
This act is not a copy of the statute of James I. ch. 16; and all the objections that would urge the exemption of suits, ex maleficio, from that statute, may be presented under the law of Ohio; other exceptions may also be claimed. 'Actions on the case' are associated with actions arising ex contractu; and thus actions arising out of contract are only intended to be provided for nothing is said in the law of actions ex maleficio.
If actions of this kind are embraced by the act of 1810, they are only so by a forced construction of the words 'actions on the case,' associated and classed in the same statute with various actions arising ex contractu: while in a subsequent law of Ohio, passed in 1824, they are described in express terms, and naturally associated in the same sentence with various other actions, arising ex delicto.
But if these actions are embraced in the act of 1810, they must be such only as may be prosecuted against officers of the state. Actions against officers of the United States were not in the view or contemplation of the legislature of Ohio when the law was enacted, nor did they intend to afford protection to any officer but one of the state. Certainly the legislature had not before them the protection of the registers of the United States land office, from suits for a violation of duties by which the citizens of Ohio might be injured.
To apply the regulations of the several states to such cases, would produce the absurdity and injustice of different laws, and different limitations existing in different states. If the power of state legislatures to limit actions against officers of the United States is admitted, the power over those officers might be exercised in other and in oppressive legislative provisions.
The statute of Ohio cannot be enlarged by construction, so as to apply it to things not properly within state control, nor within the intention contemplated by those who enacted it.
Mr Berrien, attorney general, for the defendant in error, contended; that the application and authority of state statutes of limitations to suits in the circuit courts of the United States, had been frequently decided in this court. What may have been the intention of the legislatures of the states in enacting limitation laws is not inquired into, and is not material; the only question is, whether the law applies to the case. Faw vs. Roberdeau, 3 Cranch, 174, 1 Condensed Rep. 483. Hopkirk vs. Bell, 3 Cranch, 454, 1 Condensed Rep. 595. Marsteller vs. M'Clean, 7 Cranch, 156, 158. King vs. Riddle, 7 Cranch, 168. Bond vs. Jay, 7 Cranch, 350. Clementson vs. Williams, 8 Cranch, 72, &c.
It is admitted that this action was not commenced within six years, and that it is in its nature an action which would be within the operation of the law of Ohio, unless a construction shall be given to that law different from the general and usual import of its terms.
The argument, that the association of the action on the case with debt for rent, proves that pecuniary actions were only to be barred, will not be found correct; as 'forcible entry and book accounts' are in the same association.
The plain and obvious construction of the law is that which has been given by the circuit court. The different kinds of action, and causes of action upon which the limitations of the law were intended to operate, were in the view and purpose of the legislature of Ohio; the association or classification was not because the cases were analogous, or had an affinity one to the other, but because of the intention that the action of the statute should be the same as to time on each of the members of the class.
The words of the statute of Ohio being general, unless the officers under the government of the United States are especially exempted, they may avail themselves of its provisions.
Cited, 2 Stark. on Ev. 901. 1 Saund. 37. 3 Bacon, 509. Ballantine on Limitations, 88.
Mr Justice M'LEAN delivered the opinion of the Court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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