modified plaintiff duly performed the same. To the reply there is a demurrer. Obviously, that part oHhe reply which alleges It modification of the contract on 1.5,1885, is not a sufficient 'answer to the plea of the statute of frauds. If the pleader intended to state that, in point of fact, the contract described in his petitionas made on October 1, 1884, was not made until January 15,1885, and for that reason the plea of thestatut8' is not tenable, then the reply is in the nature of a departure from the ol1iginal cause of action, and on that ground the demurrer should be sustained. If, on. the other hann, the, pleader intends to adhere to the original averment that the contract on which he sues was made October 1, 1884, the plea of the statute i'emains unanswered, unless we construe the last c1r.use of the reply (which is a general denial) as intended to be a response to the plea of the statute. ;We think it evident; fro111 the form of the pleading, that, the pleader .intended to allege the modification of the' contract on. January 15, 1885, asa defense, to the of the statute. ' ,In other words t we think he intended to say that the contract on which he.sues was made ,on January, n, 1885,i.nstead of October 1, 1884,as'atfirst alleged·. , Our judgment is, therefore. that the reply is bad, as being a departure from the originiU' cause of action. We accordingly sustain the demurrer. Plaintiff can only avail himself of the facts stated in the reply (if they constitute a defense to the plea) by an amendment of his petition. The petition canthereof contained not be amended by virtue of in the reply. " , ,
BELLEVILLE SAV:. BANK V. WINSLOW.
(Oircuit Court, E. D.
¥i8SQurt, E. D.
April 25, 1887.).'
PAR'rNERSHIP-J'UDGMENT AGAINST-;-SUIT AGAINST PARTNER.
, Under:Rev. St. Mo. 1879, §658, which provides that "all contracts which, by common law, are joint only, shall be construed to bejointa.nd several," in a snit upon a judgment recovered against a firm, all the partners are not necessary p a r t i e s . " , In Missouri, advantage cannot be taken of the statute of limit&ti()ns otherwise than by plea. except in those cases where the statute creates ail absolute bar by lapse of time, without any exception.
LIMITATION OF ACTION-PLEADING.
Demurrer to petition.
Oharles W. Tlwmas, for plaintiff. J. W. Hamill and Henry W. Bond, for· defendant.
THAYER,J. The first count of this petition is upon a judgment recovered in the Southern district of Illinois against the defendant and one James H. Wilson, who were partners, and as such, under the firm name of Winslow and Wilson, contracted the debt out of which the judgment arose. Winslow has been sued alone upon the judgment. There is a
BELLEVILLE SAV. BANK V. WINSLOW.
demurrer to the first. count for the reason that Wilson is not joined as a party defendltnt. the theory; of the demurrer being that both parties must be joined in the action, in!lsmuch as the suit is founded on a joint obligation. But in the state of Missouri, by statute long since adopted, "all contracts which, by common law, are joint only, shall be construed to be jointalfd several." Rev,St. Mo. 1879, § 658. It foHows, therefore, that the defendant may be sued alone in this jurisdiction, as upon a several c()ntract, and that the, demurrer is not well taken. The secdnd count oftpe,petitionis upoIllt contract of guaranty Qf,a promissory executM-ty Winslow and Wilson under date of August 29, 1874. The suit having been filed December 31, 1886, more than ten years after, there is ademurrer to the i5econd·count, for that ihe action appears to be barred by the statute of limitations. Undoubtedly, the Missouri statute of limitations is applicable to the case, but, as we understand the rule of procedure in Missouri, advantage cannot be taken of the statute of limitations otherwise than by plea, except in those cases where the statute creates an absolute bar.by lapseoftime,1without any exceptions. The case of State v. Bird, 22 Mo. 470, appears to have been the first case in this state in which the lltatute of limitations was invoked by deIXll1rrer, . In that case the action was on a constable's bond, asto which the statute o'i-eated an' absolute bar to an action by lapse of two yearwwithQut any.exception, and it was held to be proper to entertain'll: demurrer in thtitcase, solely on the ground that thebar was absolute, without any exceptlon, after the lapse of two years. The next case in order of time ;was that of McNair v. Lott, 25 Mo;19Q, in which case it was held, substantially, that the statute could not be invoked'pydemurrer, except in those cases "where it plainly plaintiff's case is fully stated,aiid it is clear that he cannot recover" by reasonofla.pse of time. In the case of Boyce v. Christy, 47 Mo. 70, Cited by defendant, the action was upon an indenture given by a master to his apprentice. As to this class of instruments, the statute creates an absolute bar, without any exceptions, after the lapse of two years. Rev. St. Mo. § 4091. . In de,.. ciding that case, and holding the petition .11> be demurrable, the court to t,he former decision (State v. Bird, 22 Mo. 470,) as controlling authority. . .' In aatill later case, that of State v. Spmwer, 79 Mo. at page 316, the supreme court restate the rule in State v. Bird, supra, as follows: "When the statilte creates an absolute bar by the mere lapse of time, without exceptiQn, the defe;nse [of the statute] may be made by demurrer, if the necessary facts appear upon the pleading." There is one other case, Hendch v. Ohaney, 61 Mo. 129, in which a general'statement is made to the effect that, "when the petition upon its face shows that the time has elapsed in which suit may be brought, the defect may be reached by demurrer;" but, as the above-cited case of Boyce v. Oh'ljaty is alone referred to in support of th& proposition,it is ItitUrifest that the court merely intended to reaffinn the· doctrine of the preceding cases, namely,·that a demurrer will lie iIi those cases only where
, FEDERAL REPORTER.
the statute of limitation& applicable to the case creates an absolute bar without exception, and the facrthat such period has, elapsed clearly appears from the face of the petition. If the statute Cif limitations applicable to a given case is the general statute of limitations, and the bar of the statute may be avoided by nny one of the numerous exceptions mentioned in the act, it is certainly more logical to require the defense of the statute be taken by plea, and. such seems to be the meaning of the Missouri decisions heretofore cited. The ,demurrer to the second count will accordingly be overruled, and the defendant will beheld to make the defense of the statute by plea instead of by demurrer. . Twenty days will be allo",ed' to file a plea or answer.
UNITED STATES fl. TRICE.
, (Diltrict (Joq,rt,
Tenn68'68. March 15,.1887.)
' , '
CBnrmAL LAw-MALTRJI4\TUlCNT OF CREW 01' VESQL--REv. ST.
U. S.§ IiM7
, Anyone who by authority exercises the function of control over theactfons Of the crew, or any part of it, bygiving direction to their work, is an "offil;Jer, II within the meaning of the Revised Statutes oj the United States, § 5847,'and is liable to the penalty if hI! beat or wound one of the crew. t .· SAME-CASE IN JUDGllENT-"CAPTAIN OF TRE WATCH." Where :the roustabouts belonging. to the crew of a steam-boat are divid!!d into watches, and one. of their )luJJl1:ler is set over. them as "captain. of thll watch, " with power to direct their'work and demand obedience to his orders, keM,'that he is an officer within the meaning of the statute, (Rev. St. U. S. !'\ 5847,) and may be held to l!'nswer a charge of beatil\g and wounding one of the crew so placed under,
On Habeas Cory'!l:8. , H. C. Anderson, Asst. U. S. Atty., for the United States. H. C. Warinner,
HAMMOND, J. The defendant 'having been held t6bail by a commissioner to answer for a violation of section 5347 of the Revised Statutes of the United States, maclt:l to the district judge for a warofremoval to another district fortx:ial"but, there being much doubt whether the facts brought hIs offense within the statute, counsel was assigned to him, and, by agreement with the district attorney, the matter was heard as if upon habetJs corpus. U. S. v. Bra'lJJ'lU'i', 7 Fed. Rep. 86; Inre Jame8, 18 Fed. Rep. SSa, 854. .' . . The defendant is one of the "roustabouts." or deckhands engaged on steam-boats to do the work ofloading, unloading, etc. He is charged with" beating andwounding " one of the crew, another" roustabout, j, contrary to the p'rovisions of thl1t statute. He is what is known in that service as a "captain of the. watch," and it is by reason of that relation that