In this respect the conditions wer(l essentially unlike those which appeared in Bondrett v. Hentigg, Holt, N. P. 149, where the goods were stolen on a barbarous coast; for, in the cases at blJ,r,the courts and laws were in the same full vigor where the property arrived 8S in the United States, and presumably the consignees had opportunity for enforcing all legal rights. , On the whole, the suits turn on the circumstances of the sale at Birkenhe;:td or Liverpool of the renlllants of the consignment. The rules applied by Us are elaborated in Arnold on Marine In8urance, (6th Eng. Ed.) in the opening of chapter 6, and in chapter 7, vol. 2, pp. 951, 952, and page 988 and sequence,.andare reinforced by the conclusions in Thornely. v. Hebson, ubi 8Up1'a. The exprllSSion of Lord TlwrERDEN (ABBOTT, O.J.) in this case is very apt: "If, in this case. it had appeared that the owners bad. used all the means I.D their power. and were still unable to have paid this salvage, it would have been very different; but that is not 80. and I am therefore of opinion that the assured is not entitled to recover for a total loss... OJpelin v. In.mranceUo., 9 Wall. 461; Richeliett &- O. Na.'IJ.Oo. v. BOBton Marine.!"". (b., 136 U. S. 408, 10 Sup. Ct.. Rep. 934; and Shepherd v. Henderson, L. R. 7 App. Cas. 49,-cited by the plaintiff,-reiterate, for the sake ;of applying them to the pending facts, rules of law fundamental and well known as applicable to abandonments under policies which cover constructive total losses, but; have no close relation to the suits at bar. We understand the proposition that the policies should be treated as effecting a separate [email protected]
McKEAN t1. ARCHER.
(Circu.U Court, D. IndiaJna. October 28, 1891.)
LDrrrA.'I'IOK OJ' .A.OTIoNS-eoNSTRUOTION OJ' STA.TUTB.
Act Ind. April 7, 1881, provides that actions must be brought wIthIn the timell named. all follows: "Upon. promissory notes, bills of exchange, and other contracts for the payment of money, hereafter executed, within ten years: provided, that all Buch contracts aB have been heretofore executed may be enforced, under this act, within Buoh time only. as they have to run before being barred under the existing law, etO. Hel,d" the .words "existing law" apply to laws existing when the contract was made. and not when the Buit was brought; and therefore contracts executed prior to the act are Btill enforceable within 20 yearB, 88 before.
tracts, and provides a different period for ·future contracts, does not reniler it In.
B.lMll-eoNB'1'ITUTIONAL LA.W-Sl'llCIA.L LllGI8LATION.
The fact that the statute continues in lorce one period of limitation for past oon-
valid, 88 lacking a uniform operation, or being in the nature of special legislation. for it is general and uniform upon all persons or things. under the same circUmIIta_
At Law. Action by Samuel McKean against Robert N. Archer on a note. Heard on demurrer to the answer. Demurrer sustained. B. V. MarshaUand Jump; Lamb Davis, for· plaintiff. Oleveland Matthews arid A.O. Harris, for defendant.
:BAKER, Judge. Action to recover the contents of a note executed in thisstllte for $5,025.93, bearing date July 1, 1877, due one day-after date.. Answer that the cause of action did not accrue within next before the Commencement of the suit. Demurrer to the answer for want of facts. !':Altha time this cause ofaction accrued, the statute of limitations of iHi$ 'state as the period within which such actions mustbe brought. 2 Gavin &H.St. ofInd. p. 159, § 211, par>5.0n the 7th day of April, 1'881. another statute oflhnitations was enacted,which took eJ,feet September 19, 1881,and yet remains in force. This statute is as 'follows: ' , . .. Tbe following .actions shall be. commenced wit11.11l ,the periods herein pre-
the cause of has accrued, anq. not afterwards: ...... ... Ftfth· .Upon prpIl1issory notes; bills of exchange, aha. written contracts for 'the paymerttof money, hereafter executed, within ten years: prOVided, that all Buch contracts as bave been heretofore executed maybe enforced, unact, withiu such time only as they have to run before being barred un4ertbeexisting law limiting tbe commencement of actions, and not afterwards,"
Otlthe one side it is claimed that the note is to be governed by the statute of limitations in force at the time the caUse of action accrued thereon. On t'heother side, it is insisted that it must be governed by the statute of limitations in fOlce when the suit was instituted. The current: 'of' authority, both English and American. is almost unbroken, that statutes of limitation operate on the remedy only, and do not affect the right; and that the statute in force at the time the suit is brought, and in the forum where it is brought, must control. This rule has often been regretted by eminent judges as a departure from sound principle, but it is now so;firinly settled that the statute of limitations that it is no longer does not enter \oto and form a part of the open to debate. It follows that the sufficiency of the answer hinges on the construction of the statute above quoted. That part of the act which precedes the proviso, ex vi termini, applies only to promissory notes, bills of exc:P$.nge" l!.nd other written contracts for the paYment ofmoney executed after the enactment of the statute. It is it was the legislatiye that all notes. bills, and contra;cts' for the payment of after of the statute should be limited by the claQ$l;l preceding the proviso to the period ofl0.years. and that all Buch contTactsexecuted prior to that time should be governed by the terms ofth.eproviso. The' proviso declares" thatall such contracts as have been heretofore executed may be enforced, under this act, within Buch til;l1f()nly as they]jate ,to run before being barred under the ing law limiting the commencement of actions, and not afterward." The
M'KEAN V. ARCHER.
language of the proviso is not entirely free from obscurity; On the one hand it is claimed that the words "'existing law" mean the law existing at the time suit is instituted, and hence that the 10-years limhation applies. On the other hand, it is insisted that these worda rerer to the law' in force at the time the contract was executed, and that the limitation governs. In my opinion. the words" existing law" refer to the limitation law in force at .and prior totheQllite of the enactment of 1881; and as to all written contracts for the Payment of money executed before Septemper 19, 1881, the prior 20-years limitation is continued in force. If it wM the purpose of the legislature to apply the 10-years limitation to contracts theretofore executed, the proviso Was needless. All that was necessary, if such was the purpose, would have been to have omitted the proviso, and the words" heretofore executed" in the clause preceding the proviso. It is the duty of courts to construe statute8so as to give effect to the entire language employed, where such a construction is practicable. Nothing less than imperative necessity will justify a court in rejecting words or clauses used in a statute. Here no such necessity exists. Construing the words "existing law" as referring to andconiinuing in force the statute existing at the time the noie in suit was executed, effect is given to all the words of the statute. The statute thus read constitutes a just and harmonious enactment. All notes, bills, and contracts for the payment of money executed on or "after September 19, 1881, are governed by the 10-years limitation prescribed by the act of 1881; and all such contracts executed before that date are governed by the 20-years limitation continued in force by the proviso. But the provision in question, iJ the words" hereafter executed" in the clause preceding the proviso had been omitted, would be construed as prospective. Murray v. Gibson,15 How. 421; Bohn v. Waterson, 17 Wall. 596; King v. Tirrell,2 Gray, 331; DickBcm v. Railroad Co., 77 Ill. 331; McCormick v. Eliot, 43 Fed. Rep. 469; McKis8on'v. Davenport, 83 Mich. 211, 47 N. W. Rep. 100. " It may be laid down as a general rule for the interpretation of statutes that they ought not to be allowed a retroactive operation, where this is not required by express command or by necessary implication. Without such requirement, they speak and operate upon the future only. Especially should this rule prevail where the effect and operation of the law are designed, apart from the intrinsic merits of the rights of the parties, to restrict the assertion of those rights. But, aside from these considerations, and out of abundant caution, the words preceding the proviso are expressly limited to notes, bills of exchange, and other written contracts for the payment of money, thereafter executed. As the note in suit was executed before the statute was enacted, it is, by its express language, excepted from the operation of the 10-years limitation. In King v. Tirrell, 2 Gray, 331, a cause of action arose against an administrator at a time when the right to sue was limited to the period of four years from the date of his bond. After the cause of action had 8ccrued, the legislature of the state enacted a law prescribing two years 1l.S the time within which such actions must be brought. The latter
FEDERAL' REPORTER, YOl.
statute was held;io1!leprospective,and that a cause of action existing .when it came'iJ1toeffectwas governed by the statute of limitations in I"Q,JJioksoT4Y.' Railroad Co., 77" force when the <right-ol Ill. 331ja:catlse'"4:lf'&etioh accrued. for personal injury. At the time the' cause ofaetioff aCcrued, the right to sue was .lim itElcl to the period offiveyeats.·' Th$reafterlthe legislature enacted a law prescribing two years'B.s"the must be brought. The c()urtheld the latter eIiacttnent prospective, and that the statute in force -when,the cause of actidm accrued furnished the rule of limitations. Meh:tt8''t.HOh'''l''imn, 114 m. 248,2 N. E. Rep. 64, was an RGtion upon a/pl'Ottlissory note dated January 25, 1872, payable two years after date.r:;'Action Was commenQed October 15, 1884. At the time the note"was the lim.itation was 16 years, under the act of NovemI)ei'5n849i. f By an act which went 'into effect July 1, 1872, the tirhe'6flimitati0tl of anrgctionona .promissory notewae made 10 yoo,rs. Theact'6[;}87:2'6xpresSly'repealed. the act of 1849, with this.provision in therepelrlmgillectionl',I'But this section-shall not be construed so as orliahilities, or any_ causes ofaction,that may have accruedbefo1ethis act shall:- take efI'ecU" The question was, which· act to 'govem,---the act of 1849, which was in force at the time the note was exMuten; or the :act of 1872, which was enacted and went into effect ll.ffel'lthe! ilnaking oHbe note? The court held that the latter act was and that the saving clause above quoted col'ititiued the lIiwof 1849 in. force as to notes executed prior to the tim'ei,theact ,of 18'12 took effect. McMillan v. McCormick, 117 Ill. 79,7 N. E.Repd32, and McKi8son v. Davenport, 83 Mich, 211,47 N. W.Rep. ,100, fully support the same doctrine. . Thus it is Seen that the constructiou given to the act of 1881 is sup, ported reason, and authority. It is insisted. ,however, that sllcha.eonstruction bnngsthe provision under consideration within the condemnation <>fthe constitution of this state, and also ofthefourteenth atnendment of·the constitution of the United States. 'rhe argument is that "the':officeof the proviso is solely to suspend the ten-years limitathe contract happens to be executed before tion inthoB6'.cases Septetnber [9,:1881 ,w.hether it falls due then or afterwards." Cooley, Const. Litn'.' p. 391 ,note' 2, and Holden v. James, 11 Mass. 397, are cited to the pi;oposition that "the statute of limitations cannot be suspendedin pa.rticular cases while allowed to remain in force generally," Manifestlyiiti'e not the' office of the proviso to suspend. the statute in particular'case8. The enacting clauseprecedinp; the proviso in clear and positive 'terms declares that the 10-yearslimitation therein prescribed notes, bills of exchange, and other written contracts for the' pliymentiof money thereafter executed. If the proviso were eU,minated 'fl'omthe act, the 10-yearslimitation could not be applied to notes previollslyexecuted. The proviso does not suspend the operation·ortlle ennctingcliluse question. It does not relate to nor embrace the'same class of contracts as the enacting clause. The whole purpose'and scope of the proviso is to continue the prior statute of lim-
795 itations in, force as toall ,?ills pf, ,and other written contracts for the payment of money executed before the' act of 1881 took t!ffect. .The real of opjectionev,idently is that it is not within the domain of the legislative power to enact a statute of limitations which shall affect and operate upon written contracts thereafter executed, and continue in force the prior limitation law as to all contracts previouslyexecnted. Such statutes have been frequently enacted, and have' beeu drawn in question before the courts' of last resort. They have been enforCed as valid enactments, without any suggestion by court or that. they wer, unconstitutional. See authorities supra. If the !' provision in question is it is upon the ground that the law is special, and not of uniform operation,or it denies equal privileges and immunities to all. It is not obnoxious to either objec,. tion. It is general and uniform in its operation. A law is general and uniform when it operates alike upon all persons and things within the jurisdiction of the state, under the same circumstances. This provision guaranties to all persons the same privileges and immunities, under like conditions. Equal protection of the law exists whenever, under like conditions, every person is secured in the enjoyment of the rights by the law. Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357; Sobn Bing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730; Mugle:r v. KanBG.8, 123 U. S. 623, 8 Sup. Ct. Rep. 273; CaldweU v. Texas, 137 U. S. 692, 11 Sup. Ct. Rep. 224. It is neither special, partial, nor arbitrary, and it must be held to be a valid exertion of constitutional power. The answer is insufficient. The demurrer is sustained.
(Circuit Coun. 8. D. Ohio. November
1. BAD.... CoRPUS-WIlEN LIlliS-PRESUMPTION&. Where a man has been indicted, tried, convicted,. anI! sentenced by a state court haVing jurisdiction of the prisoner and the crime charged, and authority to pl'Qnounce the particular sentence. it will be conclusively presumed, in habea8 corpus proceedings in a federal court, that the state adduced sufficient evidence to sustain the judgment.
2. SAME-BILL OF EXCEPTIONS NOT A PART OF THE RECORD.
'I'he bill of exceptions in a criminal case is not a part of the record, in such sense that. a court may look into it on habeas corpus proceedings collaterally attacking the judgment., . .
8. SAME-ISSUANCE OF THE WRIT. Under Rev. St. § 75.'>. the writ should not iSsue unless the petition itself shows
that the party is entitled thereto.
Petition for habeG.8 corpus and certiorari. Denied. Statement by TAFT, Circuit Judge: This is a petition for habea8 corpus :filed by George P. Haskell, and is as follows: