# Townsend v. Jemison

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United States Supreme Court
50 U.S. 407
Townsend v. Jemison
THIS case was brought up, by writ of error, from the District Court of the United States for the Middle District of Alabama.
Townsend was a citizen of the State of Mississippi, and Jemison of Alabama.
In September, 1844, Jemison brought a suit, in the District Court of the United States for the Middle District of Alabama, against Townsend, who was in Alabama.
The nature of the suit is explained in the following short specification of claim, filed by the counsel for the plaintiff.
'This action is brought to recover damages for the nonperformance of an agreement made by the defendant with the plaintiff, that if the plaintiff would procure, take up, and obtain a note made by Robert Weir, A. F. Young, and the said defendant, and Henry Buchanan, for $4,000, dated Columbus, April 12, 1839, payable nine months after the 24th of April, 1839, to the Mississippi Union Bank, at their banking-house in Jackson, bearing ten per cent. interest after maturity, if not punctually paid, but upon which note the said A. F. Young was to pay the said bank $1,000; and would also procure, take up, and obtain a note, made by the said defendant and A. F. Young, Andrew Weir, and Henry Buchanan, dated Columbus, April 12, 1839, for $4,000, payable nine months after the 24th of April, 1839, to the Mississippi Union Bank, at its banking-house in Jackson, to bear ten per cent. interest after maturity, if not punctually paid, but upon which note A. F. Young was to pay $1,000; that he, the defendant, would take up, procure, and obtain a note, made by John B. Jones, Thomas Townsend (the said defendant), Eli Abbott, and Samuel D. Lauderdale, dated Columbus, Mississippi, May 24th, 1839, for $9,806.50, payable six months after date to the Commercial Bank of Columbus, or order, at their bank; which agreement the defendant wholly failed to perform, although the plaintiff, upon his part, fully performed the said agreement. Other counts will be added in the declaration.
'Attest: CRABB & COCHRAN, Plaintiff's Attorneys.'
The declaration set forth the transaction with more particularity, and also contained the common money counts and an account stated.
To the first count the plaintiff in error pleaded in bar; First, that the promise was unwritten, made in Mississippi, and to be performed there, and was made more than three years before this suit; and that, by the statute of limitations of Mississippi, the right of action is barred upon such a promise after three years. Secondly, the same matter, with an averment that the cause of action accrued in Mississippi more than three years before this suit. To these pleas there was a demurrer. To this first count the plaintiff in error further pleaded, as to parcel thereof, non-assumpsit, and as to the residue, a former action brought and judgment recovered by the defendant in error against him. The defendant in error joined issue on the parts of this plea respectively, to the court and to the country.
To the whole declaration the plaintiff in error pleaded non-assumpsit, on which issue was joined; and also that the causes of action accrued more than three years before suit, averring himself to have been a citizen of Mississippi, and that the promises were there made and there to be performed; and to this plea the defendant in error demurred.
In this state of the pleadings, the cause came on for trial, on the 7th of December, 1846, when the following proceedings were had.
'This day came said parties, by their attorneys, and the demurrer to the first three pleas of the said defendant, by him above pleaded, coming on to be heard, and having been fully argued by counsel, and understood by the court, it is adjudged by the court that the said first three pleas by the defendant above pleaded, and the matters therein alleged, are insufficient in law to bar the said plaintiff from having or maintaining his said action against said defendant; and the court doth accordingly sustain the said demurrer. And as to so much of the said fourth plea by the said defendant, by him above pleaded, as alleged a former recovery of three thousand four hundred and fifty-one dollars and eighty-eight cents, in the District Court of the United States for the Northern District of Mississippi, on account of the undertaking of the said defendant 'to pay three thousand dollars, or any other part or parcel of the said note, made by the said John B. Jones, Thomas Townsend, Eli Abbott, and Samuel D. Lauderdale, in consideration that the said plaintiff would pay three thousand dollars, or any other part or parcel of the note made by Thomas Townsend, A. F. Young, Andrew Weir, and Henry Buchanan,' and set out at large in said count, on which issue was joined to the court, the record therein referred to being seen and inspected by the court, and the same being fully considered, the court adjudged that there in such a record, as alleged in said plea, of a recovery on the promise of the said Thomas Townsend to pay on the note of the said John B. Jones, Thomas Townsend, Eli Abbott, and Samuel D. Lauderdale, as mentioned in said plea, the like amount that should be paid by plaintiff on the note of the said Thomas Townsend, A. F. Young, Andrew Weir, and Henry Buchanan. And as to the residue of said fourth plea, and the fifth plea, upon which issue was taken to the country, thereupon came a jury of good and lawful men, to wit, Amos Briggs, and eleven others, who, being impanelled, tried, and sworn the truth to say upon the issues joined, upon their oaths do say, they find the issues in favor of the plaintiff, and assess his damages at four thousand six hundred and forty-five dollars. It is therefore considered by the court, that the plaintiff recover of said defendant said sum of four thousand six hundred and forty-five dollars, the damages by the jury assessed as aforesaid, in manner and form aforesaid, together with the costs in this behalf expended.'
Townsend sued out a writ of error, and brought the case up to this court.
It was argued by Mr. Key, for the plaintiff in error, and Mr. Lawrence and Mr. Badger, for the defendant in error.
Mr. Key.
The questions now presented for consideration arise from the pleas of Townsend to the declaration.
To the first three pleas the plaintiff below demurred; and it is submitted, that the court erred in sustaining this demurrer.
1. The substance of these pleas is the bar of the statute of limitations of the State of Mississippi, and it is contended for the plaintiff in error that they were valid pleas. The general principle must be admitted as settled, that, in personal contracts, the lex loci contractus governs in all questions relating to the construction or validity of the contract, in whatever country or State the action may be brought. Laws of limitation, it has been generally decided, affect the remedy, and the lex fori, or the law of the place where the action is instituted, prevails. But the question now presented is, whether these pleas are not valid, the statute of Mississippi having completely run against the plaintiff Jemison, the bar being perfected, and his remedy in that State extinguished.
It is thought that this is an open question. The decisions of this court, touching the general question as to the effect of statutes of limitation, are to be found in the following cases: Hawkins v. Barney, 5 Peters, 457; Bank of U. States v. Donnally, 8 Peters, 361; McElmoyle v. Cohen, 13 Peters, 312. The decisions in these cases will be found, upon examination, not to have settled the present question: But see Leroy v. Crowninshield, 2 Mason, 151; Bell v. Morrison, 1 Peters, 373; Goodman v. Munks, 8 Porter, (Ala.) 84; Davis v. Minor and Wife, 1 How. Miss. 184. It will be perceived by the two cases last cited, that the highest court of the State of Alabama has decided in favor of the validity of a plea of limitations of another State, when the bar has been perfected; and the High Court of Errors of the State of Mississippi has affirmed the same principle. In Leroy v. Crowninshield, Judge Story felt constrained, by the decisions of the courts of the States in which the parties respectively resided, to decide the question contrary to his own judgment; but the highest courts of the States in which the parties to this suit are respectively resident have decided in accordance with that judgment.
2. Are not these pleas within the lex fori of Alabama? It is true they are not pleas of any statute of limitations of that State, but they are framed in conformity with the decisions of the Supreme Court of the State, which declares that a plea of the statute of limitations of another State, if the bar of the statute has been perfected, is a valid plea in the State of Alabama. Goodman v. Munks, before cited.
The power of the Supreme Court of the State to decide and settle the law, as to what pleas should be good in the courts of that State, cannot be questioned. The court below should have been guided by this decision, and was bound to adopt it. A fixed and received construction by a State court of its statute laws, must furnish the rule of decision to the Federal courts, and it is immaterial whether the decisions of the State courts are grounded upon statutes of the States, or form a part of the unwritten law; and such decisions are entitled to the same respect as those which are given on the construction of local statutes. Henderson and Wife v. Griffin, 5 Peters, 154; Jackson v. Chew, 12 Wheaton, 153; Leroy v. Crowninshield, 2 Mason, 151.
The decision of a question of local law by the highest tribunal of a State is considered final by this court. Rowan et al. v. Runnels, 5 Howard, 134. It is submitted, therefore, that the first three pleas are good, according to the settled law of Alabama.
3. The plaintiff in error contends, that the fourth plea should have been adjudged a bar to the whole action in the court below. The plea states, that, upon the identical cause of action, a suit had been instituted by the plaintiff below in a court of competent jurisdiction in the State of Mississippi. A judgment was obtained in favor of said plaintiff, and was subsequently paid and satisfied.
A judgment obtained in one State is conclusive in every other State, and extinguishes the original ground of action. Green v. Sarmiento, Pet. C. C. 74.
It cannot be contended that the judgment referred to applied to a part only of the said Jemison's claim. The record shows, that the whole claim was included in the suit in Mississippi. But, admitting the suit to have been brought for a portion only, still the same principle applies; the cause of action was founded upon one promise. A plainfiff cannot divide one entire cause of action, so as to maintain two suits upon it, without the defendant's consent; if he attempt so to do, a recovery in the first suit, though for less than his whole demand, is a bar to the second. Ingraham v. Hall, 11 Serg. & Rawle, 78; Crips v. Talvande, 4 McCord, 20; Smith v. Jones, 15 Johns. 229; Mandeville v. Welch, 5 Wheaton, 277; Tiernan v. Jackson, 5 Pet. 580; Shankland v. Corp. of Washington, Ibid. 390.
If it be contended that the judgment obtained in Mississippi was pleaded in the said fourth plea only to a portion of the declaration, and that it was not pleaded in bar of the whole action, and that the point was not presented to the court below, and that this court will not reverse the judgment upon a point which was not presented for the consideration of the court, I refer to Stephen on Pleading, pp. 117, 118, 119, 120, 144, 145, 146; Slacum v. Pomery, 6 Cranch, 221; Cohens v. State of Virginia, 6 Wheaton, 409, 410; United States v. Carlton, 1 Gall. 400.
The counsel for the defendant in error contended,--
First, that the three pleas of the statute of limitations were bad in law, and therefore were properly overruled by the court. The limitation of actions by statute, affecting only the remedy and not the merits, furnishes a rule of decision only in the forum of that country which makes the statute, and not touching the merits, nor being any part of the contract, cannot be extended to the courts of another country. Williams v. Jones, 13 East, 439; McElmoyle v. Cohen, 13 Pet. 312; Story's Confl. of Laws, §§ 576 to 582.
The statute of Mississippi is merely a statute of limitations, affects the remedy or right of action only, and does not extinguish the debt, the claim or title ipso facto, and make it a nullity. This appears both from the plea and from the statute itself. Miss. Code, 825, 828.
Secondly. If in any case the statute of Mississippi could be used to affect the action in Alabama, it must be where the party sued had always been, from the time the cause of action accrued, until the bar became complete, within the jurisdiction, and liable to the process, of the courts of Mississippi. But the pleas here do not show this, the averment being, 'that, on the 1st of January, 1839, he was, and from thence hitherto hath been, and still is, a resident and citizen of the State of Mississippi, and not elsewhere.' But residence and actual presence are not in law identical. Story's Confl. of Laws, §§ 46, 47.
Absence from a State does not imply loss either or citizenship or residence; whether either is lost depends upon the intent of the party, and other matters. If the absence be temporary, and with an intent to return, no loss of citizenship or residence follows. A judge of this court while in Washington during the term, a gentleman visiting a watering-place in another State during the summer, a merchant visiting New York to purchase goods, a member of Congress attending a session of the Senate or House, are all and each, during the whole time of such temporary absence, citizens, and in law residents, of the States in which they have their permanent domicil.
It was incumbent upon the plaintiff in error, therefore, to show by precise and accurate averment, not that he was a citizen and resident, but that he was not in fact absent from his residence for three years from the time the cause of action accrued, and therefore for the whole time amenable to process under the law of Mississippi.
If, then, consistently with the averment in the plea, he might have been absent for a day, the plea is bad; but here, consistently with his averment, he might have been absent for the whole three years.
Thirdly. That upon the record nothing was submitted to the jury but what, according to the state of the pleading, ought to have been submitted, and, according to strict technical rules, must have been submitted; that it does not appear, and will not be intended, that any damages were given on account of matters out of the issues, or which should have been excluded from consideration by reason of the judgment given by the court upon the plea of former recovery, or the state of the pleadings.
Mr. Justice WAYNE 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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