OpenJurist

72 US 290 Christmas v. Russell

72 U.S. 290

18 L.Ed. 475

5 Wall. 290

CHRISTMAS
v.
RUSSELL.

December Term, 1866

IN March, 1840, Christmas, being a citizen and resident of Mississippi, made at Vicksburg, in that State, and there delivered to one Samuel, a promissory note, promising to pay to his order in March, 1841, a sum certain. This note was indorsed by Samuel to Russell, a citizen and resident of Kentucky. By statute of Mississippi, action on this note was barred by limitation, after six years, that is to say, was barred in March, 1847. In 1853, the defendant, who was still, and had continuously been, a resident of Mississippi, having a mansion-house therein, went into Kentucky on a visit, and was there sued in one of the State courts upon the note.

Defence was taken on a statute of limitations of Mississippi and otherwise, and the matter having been taken to the Court of Appeal of Kentucky and returned thence, judgment was entered below in favor of the plaintiff.

A transcript being promptly carried into Mississippi, the place of the domicil of Christmas, an action of debt was brought upon it in the Circuit Court of the United States for the Southern District of Mississippi; the action which was the subject of the writ of error now before this court.

The transcript above referred to, was one duly authenticated under the act of Congress of 26th May, 1790, which provides that records authenticated in a manner which it prescribes, shall 'have such faith and credit given to them in every other court in the United States, as they have by law or usage in the court from which they are taken;' an act passed in pursuance of Section 1 of Article IV of the Constitution of the United States, declaring that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings in every other State;' and that 'Congress may by general laws prescribe the manner in which such records shall be proved, and the effect thereof.'

In the action brought as above said, in the Circuit Court of Mississippi, the defendant filed six pleas—of which the second was to this effect:

'That at the time the cause of action accrued, and thenceforth until suit was brought in Kentucky, and at the time when said suit was brought, he was a resident of Mississippi, and that the cause of action would have been barred by an act of limitation of that State, if the suit had been brought therein, and so by the law of Mississippi, no action could be maintained in said State upon the said judgment.'

He also pleaded

4th. 'That the judgment set forth was obtained and procured by the plaintiff by fraud of the said plaintiff.'

And

6th. 'That the said suit in whch judgment was obtained, was instituted to evade the laws of Mississippi, and in fraud of said laws.'

The second and sixth pleas were intended to set up a defence under a statute of Mississippi, adopted in February, 1857, and which went into effect on the 1st day of November of that year.1 That statute enacted:

'No action shall be maintained on any judgment or decree rendered by any court without this State against any person who, at the time of the commencement of the action in which such judgment or decree was or shall be rendered, was or shall be a resident of this State, in any case where the cause of such action would have been barred by any act of limitation of this State, if such suit had been brought therein.'To these pleas the plaintiff below demurred. The demurrer was sustained, and judgment having gone for the plaintiff, the question on error here was, as to the sufficiency of these pleas, or either of them, to bar the action.

Messrs. Carlisle and McPherson, for the plaintiff in error:

We will, for convenience, discuss the fourth plea first, and then the second and sixth together.

I. The fourth plea offered to prove, in bar to the action, that the judgment sued on was obtained and procured by the plaintiff by his fraud.

1. Fraud by the plaintiff in procuring the judgment, if well and sufficiently pleaded and proven, would have barred the action.

This is the established rule of law, and was so laid down by this court in the case of Webster v. Reid.2

It is also the rule in Kentucky, where the judgment now sued on was rendered.3

2. Fraud was well and sufficiently pleaded.4

II. As to the 2d and 6th pleas. The manifest policy of the State of Mississippi in passing the statute set up by the defendant in his second plea below was to protect its citizens from unjust and harassing litigation under circumstances such as those under which the present one is brought on. And the question is, whether this statute, having such intent and policy, was within the constitutional competency of the State to enact.

It will be maintained on the opposite side that such a power cannot be exercised without violating that clause of the Constitution, respecting the full faith and credit due to the records and judicial proceedings of the several States.

Without here examining the authorities on this subject in detail, it is sufficient to observe that on the one hand they clearly establish that 'the full faith and credit' which is guaranteed to the records and judicial proceedings of the several States, has relation to them only as instruments of evidence,5 while on the other all the cases concede that the whole subject of remedies by action or suit at law or in equity, is within the undoubted competency of the respective States. In Bronson v. Kinzie,6 Chief Justice Taney syas:

1

'Undoubtedly, a State may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community. And although a new remedy may be deemed less convenient than the old one, and may, in some respects, render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract.'

2

Now, in the present case, the only contract between the parties in form or in substance, which is pretended to have had any existence at the date of the Mississippi statute, was that the plaintiff in error, being a citizen and resident of Mississippi, on the 10th day of March, 1840, in that State, made and delivered his promissory note to a certain Samuel, promising to pay to his order a certain sum of money at a certain day thereafter. Neither the statute in question, nor any other statute of Mississippi purports to impair, or is pretended to have impaired the obligation of this contract. After the passage of the disputed statute, as well as before, there was a statute of limitations which barred the remedy in this contract in six years after the cause of action accrued, but this it is conceded was within the constitutional power of the State.

3

All that had occurred after the making of this contract was, that a new and higher instrument of evidence, establishing the same contract with greater solemnity, had been imposed upon the debtor, by a proceeding in invitum, in another State of the Union, where he happened to be found temporarily sojourning. But the contract between the parties remained the same in its substance, although it had changed its form by operation of law, in which form its substance is distinctly repeated and adjudicated.

4

Will it be maintained that when a contract has assumed a new shape by extra-territorial judicial proceedings it may be immediately brought back into the State where it was made, and where in its original form it was a mere nullity, because against public policy, in violation of express law, and there, through the courts, in spite of the statute, be compulsorily enforced? This surely will not be contended.

5

The statute of Mississippi, alleged to be unconstitutional, did not deny to the Kentucky record the full faith and credit guaranteed to it by the Constitution. In the present case, full faith and credit and effect as evidence were given to the Kentucky record, as conclusive of every matter and thing which thereby appeared. And it did thereby appear that the judgment had no other foundation than a certain Mississippi contract therein set forth, which fell within the purview of the Mississippi statute in question, the cause of action therein having been long barred by the limitation acts of said State in force at the date of the contract.

6

This question rises far above any mere technical criticism of the provisions of the Constitution; it involves the sovereign competency of the State to enforce its own laws within its own limits in egard to subjects of litigation arising there between its own citizens. In the case at bar the statute invoked by the plaintiff was passed, manifestly, in the just and reasonable exercise of that power, which in the language of this court, above cited, must reside in every State to enable it to secure its citizens from unjust and harassing litigation. It does not disregard or discredit the Kentucky record; but giving that record full faith and credit, it declares that upon the facts thereby appearing, the obligation thereby attempted to be imposed upon the defendant is contrary to the public policy of the State, and shall not be enforced within its limits.

Mr. Ashton, contra:

7

I. In regard to the fourth plea. The plea, even admitting for argument's sake that the judgment was procured by fraud, is perhaps defective in not setting out by what fraud; in not showing, we mean, how, particularly, the fraud set up generally was perpetrated.

8

But waiving this matter of form, the plea is defective substantially, fraud being no plea in one State to a judgment standing in full force, unreversed, and never set aside, in another; and this being true, both by common law principles and by the provision of the Constitution on the subject of the faith and credit due in each State to the judicial proceedings of every other.

9

The judgments of the courts of one State are, as respects other States, very much in the nature of domestic judgments. Certainly under our Federal system, and in a country where one sovereignty is made of States, they cannot be regarded as foreign judgments.

10

As to domestic judgments, it is matter of 'horn-book learning,' that these cannot be called in question collaterally, supposing that the court which gave them had jurisdiction.

11

And even as to foreign judgments, while the earlier common law,—the law of a day when intercourse between nations was difficult, limited, and suspicious,—held them open to a plea of fraud, the disposition in this present day of the brotherhood of nations is to disallow such plea. Certainly we would be disposed to pay as much respect to a solemn judgment of the King's Bench, or Common Pleas of England, as we should to one of our own courts. And no less respect would be due from that bench to a judgment of this high tribunal; and none less we presume would now be paid.

12

But all this is quite useless discussion. The question is simply, 'What faith and credit is due in one State to a judicial proceeding had in another?' And the Constitution answers the question; for it declares that it shall be 'full faith and credit.' How is full faith and credit, or any faith and credit at all, given when you can plead that the judicial proceeding was fraudulently procured? If, indeed, any matter has supervened; that is to say, if the judgment has been paid, it may in a proper form, as that of payment, be pleaded; though not in a form, as that of nil debet, which would leave it uncertain whether the plea was meant to go to matter anterior to the date of the judgment, or to matter posterior to it. This is reason, and a matter settled by authority so well known to the bar as almost to dispense with our referring to the cases.7

13

II. As to the second and sixth pleas. The act of Mississippi is clearly unconstitutional. The Constitution declares that full faith and credit should be given in each State (including Mississippi) to the judicial proceedings in every other (including Kentucky). The act of the Mississippi legislature says that no faith or credit at all shall be given to a judicial proceeding in Kentucky in any case where the cause of action there held not barred would in Mississippi be held barred. The conflict is palpable. Under numerous authorities8 the statute of Mississippi set up as a plea is no plea. In short, no plea to a suit on such a record as this suit was brought on, is good, except nul tiel record, payment, or some plea in abatement touching the rights of the parties to sue in the court of the United States, or some limitation to the right of suing on the record founded on reasonable time from the date of the judgment.

14

Mr. Justice CLIFFORD delivered the opinion of the court.

15

Wilson, on the eleventh day of November, 1857, recovered judgment in one of the county courts in the State of Kentucky, against the plaintiff in error, for the sum of five thousand six hundred and thirty-four dollars and thirteen cents, which, on the thirty-first day of March, 1859, was affirmed in the Court of Appeals. Present record shows that the action in that case was assumpsit, and that it was founded upon a certain promissory note, signed by the defendant in that suit, and dated at Vicksburg, in the State of Mississippi, on the tenth day of March, 1840, and that it was payable at the Merchants' Bank, in New Orleans, and was duly indorsed to the plaintiff by the payee. Process was duly served upon the defendant, and he appeared in the case and pleaded to the declaration. Several defences were set up, but they were all finally overruled, and the verdict and judgment were for the plaintiff.

16

On the fourth day of June, 1854, the prevailing party in that suit instituted the present suit in the court below, which was an action of debt on that judgment, as appears by the transcript. Defendant was duly served with process, and appeared and filed six pleas in answer to the action. Reference, however, need only be particularly made to the second and fourth, as they embody the material questions presented for decision. Substance and effect of the second plea were that the note, at the commencement of the suit in Kentucky, was barred by the statute of limitations of Mississippi, the defendant having been a domiciled citizen of that State when the cause of action accrued, and from that time to the commencement of the suit.

17

Fourth plea alleges that the judgment mentioned in the declaration was procured by the fraud of the plaintiff in that suit. Plaintiff demurred to these pleas, as well as to the fifth and sixth, and the court sustained the demurrers.

18

First plea was nul tiel record, but the finding of the court under the issue joined, negatived the plea.

19

Third plea was payment, to which the plaintiff replied, and the jury found in his favor.

20

II. 1. Resting upon his second and fourth pleas, the defendant sued out this writ of error, and now seeks to reverse the judgment, upon the ground that the demurrers to those pleas should have been overruled. Views of the defendant were, and still are, that the second plea is a valid defence to the action on the judgment, under the statute of Mississippi passed in February, 1857, and found in the code of that State which went into effect on the first day of November of that year. By that statute it was enacted that 'no action shall be maintained on any judgment or decree rendered by any court without this State against any person who, at the time of the commencement of the action in which such judgment or decree was or shall be rendered, was or shall be a resident of this State, in any case where the cause of action would have been barred by any act of limitation of this State, if such suit had been brought therein.'9

21

Material facts are that the defendant, being a citizen and resident of Mississipi, made the note to the payee, who indorsed the same to the plaintiff, a citizen and resident of Kentucky. Such causes of action are barred by limitation, under the Mississippi statute, in six years after the cause of action accrues. Some time in 1853 the defendant went into Kentucky on a visit, and while there was sued on the note. He pleaded, among other pleas, the statute of limitations of Mississippi, and, on the first trial, a verdict was found in his favor; but the judgment was reversed on appeal, and at the second trial the verdict and judgment were for the plaintiff.

22

2. Undoubtedly, the second plea in this case is sufficient in form, and it is a good answer to the action if the statute under which it was framed is a valid law. Plaintiff in error suggests that it should be considered as a statute of limitations; and, if it were possible to regard it in that light, there would be little or no difficulty in the case. Statutes of limitation operating prospectively do not impair vested rights or the obligation of contracts. Reasons of sound policy have led to the adoption of limitation laws, both by Congress and the States, and, if not unreasonable in their terms, their validity cannot be questioned. Consequently, it was held by this court, in the case of Elmoyle v. Cohen,10 that the statute of limitations of Georgia might be pleaded to an action in that State founded upon a judgment rendered in the State Court of South Carolina. Cases, however, may arise where the provisions of the statute on that subject may be so stringent and unreasonable as to amount to a denial of the right, and in that event a different rule would prevail, as it could no longer be said that the remedy only was affected by the new legislation.11

23

3. But the provision under consideration is not a statute of limitations as known to the law or the decisions of the courts upon that subject. Limitation, as used in such statutes, means a bar to the alleged right of the plaintiff to recover in the action created by or arising out of the lapse of a certain time after the cause of action accrued, as appointed by law.12

24

Looking at the terms of this provision, it is quite obvious that it contains no element which can give it any such character. Plain effect of the provision is to deny the right of the judgment creditor to sue at all, under any circumstances, and wholly irrespective of any lapse of time whatever, whether longer or shorter. No day is given to such a creditor, but the prohibition is absolute that no action shall be maintained on any judgment or decree falling within the conditions set forth in the provision. Those conditions are addressed, not to the judgment, but to the cause of action which was the foundation of the judgment. Substantial import of the provision is that judgments recovered in other States against the citizens of Mississippi shall not be enforced in the tribunals of that State, if the cause of action which was the foundation of the judgment would have been barred in her tribunals by her statute of limitations.

25

Nothing can be plainer than the proposition is, that the judgment mentioned in the declaration was a valid judgment in the State where it was rendered. Jurisdiction of the case was undeniable, and the defendant being found in that jurisdiction, was duly served with process, and appeared and made full defence. Instead of being a statute of limitations in any sense known to the law, the provision, in legal effect, is but an attempt to give operation to the statute of limitations of that State in all the other States of the Union by denying the efficacy of any judgment recovered in another State against a citizen of Mississippi for any cause of action which was barred in her tribunals under that law. Where the cause of action which led to the judgment was not barred by her statute of limitations the judgment may be enforced; but if it would have been barred in her tribunals, under her statute, then the prohibition is absolute that no action shall be maintained on the judgment.

26

4. Article four, section one, of the Constitution provides, that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such records shall be proved, and the effect thereof.' Congress has exercised that power, and in effect provided that the judicial records in one State shall be proved in the tribunals of another, by the attestation of the clerk, under the seal of the court, with the certificate of the judge that the attestation is in due form. 2. That such records so authenticated 'shall have such faith and credit given to them in every other court in the United States as they have by law or usage in the courts of the State from whence the said records were or shall be taken.'13

27

When the question of the construction of that act of Congress was first presented to this court it was argued that the act provided only for the admission of such records as evidence; that it did not declare their effect; but the court refused to adopt the proposition, and held, as the act expressly declares, that the record, when duly authenticated, shall have in every other court of the United States the same faith and credit as it has in the State court from whence it was taken.14

28

Repeated decisions made since that time have affirmed the same rule, which is applicable in all similar cases where it appears that the court had jurisdiction of the cause, and that the defendant was duly served with process, or appeared and made defence.15 Where the jurisdiction has attached the judgment is conclusive for all purposes, and is not open to any inquiry upon the merits.16 Speaking of the before-mentioned act of Congress, Judge Story says it has been settled, upon solemn argument, that that enactment does declare the effect of the records as evidence when duly authenticated. . . . 'If a judgment is conclusive in the State where it was pronounced, it is equally conclusive everywhere' in the courts of the United States.17

29

5. Applying these rules to the present case, it is clear that the statute which is the foundation of the second plea in this case is unconstitutional and void as affecting the right of the plaintiff to enforce the judgment mentioned in the declaration. Beyond all doubt the judgment was valid in Kentucky and conclusive between the parties in all her tribunals. Such was the decision of the highest court in the State, and it was undoubtedly correct; and if so, it is not competent for any other State to authorize its courts to open the merits and review the cause, much less to enact that such a judgment shall not receive the same faith and credit that by law it had in the State courts from which it was taken.

30

II. 1. Second error assigned is that the court erred in sustaining the demurrer to the fourth plea, which alleged that the judgment was procured by the fraud of the plaintiff. First proposition assumed by the present defendant is, that the plea is defective and insufficient, because it does not set forth the particular acts of the plaintiff which are the subject of complaint. But the substance of the plea, if allowable at all, is well enough under a general demurrer, as in this case. Whether general or special, a demurrer admits all such matters of fact as are sufficiently pleaded, and to that extent it is a direct admission that the facts as alleged are true.18

31

Where the objection is to matter of substance, a general demurrer is sufficient; but where it is to matter of form only, a special demurrer is necessary. Demurrers, says Chitty, are either general or special: general, when no particular cause is alleged; special, when the particular imperfection is pointed out and insisted upon as the ground of demurrer. The former will suffice when the pleading is defective in substance, and the latter is requisite where the objection is only to the form of the pleading.19 Obviously the objection is to the form of the plea, and is not well taken by a general demurrer.

32

2. But the second objection is evidently to the substance of the plea, and therefore is properly before the court for decision. Substance of the second objection of the present defendant to the fourth plea is, that inasmuch as the judgment is conclusive between the parties in the State where it was rendered, it is equally so in every other court in the United States, and consequently that the plea of fraud in procuring the judgment is not a legal answer to the declaration. Principal question in the case of Mills v. Duryee was whether nil debet was a good plea to an action founded on a judgment of another State. Much consideration was given to the case, and the decision was that the record of a State court, duly authenticated under the act of Congress, must have in every other court of the United States such faith and credit as it had in the State court from whence it was taken, and that nil debet was not a good plea to such an action.

33

Congress, say the court, have declared the effect of the record by declaring what faith and credit shall be given to it. Adopting the language of the court in that case, we say that the defendant had full notice of the suit, and it is beyond all doubt that the judgment of the court was conclusive upon the parties in that State. 'It must, therefore, be conclusive here also.' Unless the merits are open to exception and trial between the parties, it is difficult to see how the plea of fraud can be admitted as an answer to the action.

34

3. Domestic judgments, under the rules of the common law, could not be collaterally impeached or called in question if rendered in a court of competent jurisdiction. It could only be done directly by writ of error, petition for new trial, or by bill in chancery. Third persons only, says Saunders, could set up the defence of fraud or collusion, and not the parties to the record, whose only relief was in equity, except in the case of a judgment obtained on a cognovit or a warrant of attorney.20

35

Common law rules placed foreign judgments upon a different footing, and those rules remain, as a general remark, unchanged to the present time. Under these rules a foreign judgment was prima facie evidence of the debt, and it was open to examination not only to show that the court in which it was rendered had no jurisdiction of the subject-matter, but also to show that the judgment was fraudulently obtained. Recent decisions, however, in the parent country, hold that even a foreign judgment is so far conclusive upon a defendant that he is prevented from alleging that the promises upon which it is founded were never made or were obtained by fraud of the plaintiff.21

36

4. Cases may be found in which it is held that the judgment of a State court, when introduced as evidence in the tribunals of another State, are to be regarded in all respects as domestic judgments. On the other hand, another class of cases might be cited in which it is held that such judgments in the courts of another State are foreign judgments, and that as such the judgment is open to every inquiry to which other foreign judgments may be subjected under the rules of the common law. Neither class of these decisions is quite correct. They certainly are not foreign judgments under the Constitution and laws of Congress in any proper sense, because they 'shall have such faith and credit given to them in every other court within the United States as they have by law or usage in the courts of the State from whence' they were taken, nor are they domestic judgments in every sense, because they are not the proper foundation of final process, except in the State where they were rendered. Besides, they are open to inquiry as to the jurisdiction of the court and notice to the defendant; but in all other respects they have the same faith and credit as domestic judgments.22

37

Subject to those qualifications, the judgment of a State court is conclusive in the courts of all the other States wherever the same matter is brought in controversy. Established rule is, that so long as the judgment remains in force it is of itself conclusive of the right of the plaintiff to the thing adjudged in his favor, and gives him a right to process, mesne or final, as the case may be, to execute the judgment.23

38

5. Exactly the same point was decided in the case of Benton v. Burgot,24 which, in all respects, was substantially like the present case. The action was debt on judgment recovered in a court of another State, and the defendant appeared and pleaded nil debet, and that the judgment was obtained by fraud, imposition, and mistake, and without consideration. Plaintiff demurred to those pleas, and the court of original jurisdiction gave judgment for the defendant. Whereupon the plaintiff brought error, and the Supreme Court of the State, after full argument, reversed the judgment and directed judgment for the plaintiff. Domestic judgments, say the Supreme Court of Maine, even if fraudulently obtained, must nevertheless be considered as conclusive until reversed or set aside.25 Settled rule, also, in the Supreme Court of Ohio, is that the judgment of another State, rendered in a case in which the court had jurisdiction, has all the force in that State of a domestic judgment, and that the plea of fraud is not available as an answer to an action on the judgment. Express decision of the court is, that such a judgment can only be impeached by a direct proceeding in chancery.26

39

Similar decisions have been made in the Supreme Court of Massachusetts, and it is there held that a party to a judgment cannot be permitted in equity, any more than at law, collaterally to impeach it on the ground of mistake or fraud, when it is offered in evidence against him in support of the title which was in issue in the cause in which it was recovered.27 Whole current of decisions upon the subject in that State seems to recognize the principle that when a cause of action has been instituted in a proper forum, where all matters of defence were open to the party sued, the judgment is conclusive until reversed by a superior court having jurisdiction of the cause, or until the same is set aside by a direct proceeding in chancery.28 State judgments, in courts of competent jurisdiction, are also held by the Supreme Court of Vermont to be conclusive as between the parties until the same are reversed or in some manner set aside and annulled. Strangers, say the court, may show that they were collusive or fraudulent; but they bind parties and privies.29

40

Redfield, Ch. J., said, in the case of Hammond v. Wilder,30 that there was no case in which the judgment of a court of record of general jurisdiction had been held void, unless for a defect of jurisdiction. Less uniformity exists in the reported decisions upon the subject in the courts of New York, but all those of recent date are to the same effect. Take, for example, the case of Embury v. Conner,31 and it is clear that the same doctrine is acknowledged and enforced. Indeed, the court, in effect, say that the rule is undeniable that the judgment or decree of a court possessing competent jurisdiction is final, not only as to the subject thereby determined, but as to every other matter which the parties might have litigated in the cause, and which they might have had decided.32 Same rule prevails in the courts of New Hampshire, Rhode Island, and Connecticut, and in most of the other States.33

41

For these reasons our conclusion is, that the fourth plea of the defendant is bad upon general demurrer, and that there is no error in the record. The judgment of the Circuit Court is, therefore,

42

AFFIRMED WITH COSTS.

1

Revised Code, pp. 43, 400.

2

11 Howard, 441, 460.

3

Talbott v. Todd, 5 Dana, 194-6.

4

3 Chitty's Pleading, 1184.

5

Mills v. Duryee, 7 Cranch, 481.

6

1 Howard, 315

7

Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheaton, 234; McElmolye v. Cohen, 13 Peters, 320; Bank United States v. Merchants' Bank, 7 Gill, 432; 2 American Leading Cases, 763 to end.

8

Bronson v. Kinzie, 1 Howard, 315; McCracken v. Hayward, 2 Id. 608; Murray v. Gibson, 15 Id. 421; Tarpley v. Hamer, 9 Smedes & Marshall, 313; West Feliciana Railroad Company v. Stockets, 13 Id. 397.

9

Mississippi Code, 400.

10

13 Peters, 312.

11

Bronson v. Kinzie et al., 1 Howard, 315; Angell on Limitations, 18.

12

Bouvier's Dictionary, title Limitation.

13

1 Stat. at Large, 122; D'Arcy v. Ketchum et al., 11 Howard, 175.

14

Mills v. Duryee, 7 Cranch, 483.

15

Hampton v. McConnel, 3 Wheaton, 332; Nations et al. v. Johnson et al., 24 Howard, 203; D'Arcy v. Ketchum, 11 Id. 165; Webster v. Reid, Id. 460.

16

Bissell v. Briggs, 9 Massachusetts, 462; United States Bank v. Merchants' Bank, 7 Gill, 430.

17

2 Story on Constitution (3d ed.), § 1313.

18

Nowlan v. Geddes, 1 East, 634; Gundry v. Feltham, 1 Term, 334; Stephens on Pleading, 142.

19

1 Chitty's Pleading, 663; Snyder v. Croy, 2 Johnson, 428.

20

2 Saunders on Pleading and Evidence, part 1, p. 63.

21

Bank of Australasia v. Nias, 4 English Law and Equity, 252.

22

D'Arcy v. Ketchum et al., 11 Howard, 165; Webster v. Reid, Id. 437.

23

Voorhees v. United States Bank, 10 Peters, 449; Huff v. Hutchingson, 14 Howard, 588.

24

10 Sergeant & Rawle, 240.

25

Granger v. Clark, 22 Maine, 130.

26

Anderson v. Anderson, 8 Ohio, 108.

27

B. & W. Railroad v. Sparhawk, 1 Allen, 448; Homer v. Fish, 1 Pickering, 435.

28

McRae v. Mattoon, 13 Pickering, 57.

29

Atkinsons v. Allen, 12 Vermont, 624.

30

23 Vermont, 346.

31

3 Comstock, 522.

32

Dobson v. Pearce, 2 Kernan, 165.

33

Hollister v. Abbott, 11 Foster, 448; Rathbone v. Terry, 1 Rhode Island, 77; Topp v. The Bank, 2 Swan, p. 188; Wall v. Wall, 28 Mississippi, 413.