M'CORMICK fl. ELIOT.
469
required by the statute. The other case progressed, and finally went on certificate of division of opinion between the circuit j\ldges to the supreme court of the United States, and, notwithstanding the decision of the supreme court of Wisconsin, the supreme court of the United States held that the purchaser got a good title. Mr. Justice FIELD, delivering the opinion of the court, says: "We shall assume. however, that the notice was not published for the full period described, and the question for consideration[that is the very question in this case] is whether such omission, all other requisites of the statute ing been complied with. rendered the order of the court invalid as against the plaintiff Mohr."
That question Justice FIELD answers in the negative, and quoting the case of Grignm'8 LesSee v. Astor, 2 How. 319, says that it is the tled doctrine of the court of the United and declin,es to be, bound by the judgm,entof the supreme court of Wisconsin iI), case. Butih the case 1;lar the publication of notice seems to have been made in exact conformity to the requirements of the statute. The, supreme court of the stateeQdecided, and an independent investigation of the question me to'tlia'same conchJsion. Letjudgment for the ,defendant. ' " i' .
at
McCORMICK V.ELIOT.
wtrClllf,t Court, D. Mas8achusetts. OctobeJ; 10, 1800.) 1. LIMITATION oIl' ACTIONS-FAILURE Ol!' ACTION BROUGHT IN
TIlIm. Pub. St. l'dasll. 0.197, § 13,'Provides: "If in an action dulyoommenced within thE!, time limited * * * the writ fails of a suftl.cient service,of return by an unavoidable accident, or by a defauit, or' neglMt of the ofllcer to whom it is oommitted, * * * or if,s judgment fol' the plaintiff is re'lersed on a writ of error, the plaintiff may commence a new action. for the same cause at any time withi.none year after tbeabatement or other deteruiination of the original sutt, or after the reversal' of the jqdgment." Plaintiff. dU,lY commenced an act,ion against defendant by SUing. out a writ and putting it in tbe hands of an ofllcer for service. The officer attached the goods of defendant, who was a non-resident, 8nd a notice'.was given defendant by on order of the court. Judgment for plaintiff was ,reversed on, writ,' of error, and, the action ordered dismissed for want of jurisdiction. Held, that plaintiff could commence 'a new action on the'same causewitlilna year thereafter. Pub. St. Mass. c. 197, §,H, providing that "no action shall brought by, any per-, son whose causa of actioIi has been barred by the laws of an)' state, territory, or country while he resided therein, no words manifesting such intent, is not retrospective· The lapse of 20 years raises no presumption of payment where the only evidence ' on the question is the testimony of clerk that the claim, was never· paid, ' and it appears that an action. W8spending during that period to enforce the. claim. Plaintiff intrusted goods to defendant to sell on commission, rendering accounts monthly. was .stated by them in settlement. Held. that. it being a claim by a principal against his agent for money, which the latter was bound to account for aI;ld .pay over, it bore interest from the time the cause of action accrued. " '
'9.
SAME-RETROSPECTIVE STATUTE.
.3:
PAYMENT-PRESUMPTION FROM LAPSE OF TIllIE.
-4. PRINCIPAL AND AGENT-ACCOUNTING-INTEREST.
At Law., This w.asan action of contract, brought May 16,1887, by McCo..mick, .a citizen pf,;UliQois, against Eli(>t, a citizen, of Massachusetts, to reoover
470
J'EDERaLBEPOBIl'ER,
vol'.' 43.
theibaJanc;:9Jo£nn,account stated AUgUsi8, 1863, by Eliotaind',one' Fiske with,.qMcCoJlDlibk" amounting totlie, :sum of. Thedefelidnnt· pleaded (I) a'geaeral1detlial; (2)1aceutdClltld satisfaction; (3) that thecil.llseof actron did ,not,acer1Xewithinsii'iydars; (4) that; by thesta.tuteofl.Iimitations of IllinoiiJ ,of action was barred by the defendant's continuous residence iO'l)llinois for more than 10yellrs after itl accrued,io wit, iromApril, 1867,to August, 1877, St. TheplaintHffiled a replication, aIleging'that within six' yeffrs. after his cause of'actfOtfa.ccrued, to wit, onOctooer21; 1'863, he drily"bO'ilimebced 1111 acti6b the sa.me cause in ,thesqperior ,court of Mussachusetts for the C(,lUnty of Suffolk, . andrectM!rad 'a'judgmertt thereirion' t850; 'which was wards; within 1l e actIon, to, wit, ob May, 1887, reversMI by,thesuprihne jUdicial ;cbtirtof ,Massachusetts 00 'tt writ, of' error sqed' dtit by 'the 'except all aforesaid , denying all' the of,the answer. At; the tnalby' jury in this court the district' it appeared that ,t46 kcconnt'stated was the result of a settlemerif-bf'Eliot and Fiske with'McCormickfor goods intrusted by him to iOn'COmlrl'ission, aedodrtts monthly; anl1a' person who was in the plaintiff's employment lrom 1863 to the prbs'ent time testified that the balance of account sued for had never been paid. The plaintiff, against the defendant's objection, was permitted to put in evidence duly exemplified copies of the judgments of the superior court and of the supreme court ot;;MassMhusetts, mentioned in the replication. By the record of the superior court, it appeared that the action in that'dou,tt wlis'commenced byMc06rmibkngainst Fiske and Eliot, October 21" l.863,bYWrit of,s"mmonsnqdattachment; that on same ,as attached all defendanl$ not bemg inhabitants of, nor· ant :residence therein, and neither t9 the officer as they nor stich, heiuglound in .his iprecinct j he, could make 110 further service of thewr1t; 1864. when the cou,rtordere,I.n(i)ticeu,.;:the' de/endants. by' publication ,ina newspaper, to by uffil!avlt that the order of notice had beenaomplied with, and at the end of· ro having baen entl:'r.ell lor the the action was con· tinued lor judgment from term to termuntil Al'riIterm. 1880, when, took judgment down by the against supreme judicial court dnwrit of errrr; 'thatjudgment. It appeared,thatatthe time ,of the attachment ,Eliot had real estutewithin' out oo:,thejudgment,ofthe supel'1or court but that .the p]ambff",oll,November'.2,. 1881, brought an action in that court on the jud!!ment, which the supreme judicial court held to be maintainable in 138 Mass, 379, By the rt'cOl'd of the Supreme judimal:dqurt, it rip peated thatitt!le1jQdgment o:fthe s.uperior court was ;the actionorderedltQ;'b& diswissediOrwfint' of juriB-'
i
.471 <lictiel1'; for· the reasons ;statedLim the: opinion repotted In'144 Mass. 10, 10'N. ,E;"Rep. 705. It. also appeat1ed that the· defendant was born in Boston in 1828; and lil\tedthere in his father's house; which was' his usual place. of abode,' until .1856; when he went to Iowa, and there lived until Ap.riL, 1867, when he 'removed to Chicago, .and afterwards constandi J;esided there uittil 1877, when he moved back to Massachusettsl and lived there' ever since; and that the plaintiff lived in Chi·,cagoeveJ.:isince 'Fhe'defendant, without offering any evidence, thereupon requested the court to rule and instruct thejury as follows: "(I) If the jury' find 'that Eliot 'had in Massachusetts' SiX. 'years before suit was brought, and a.fter datt:l,<o{'sl'ttlement. the statu,te,of limitations is a bar to recovery by plaintiff. (2) If the jury find that Elint lived in Illinois, the state where plaintiff lived. for tt>n yl'ars at anytime after settlement made and this action/was. brought, then this action was barrec,l by the statute 'otl,lmitiitions of lllirtllis,an(1 iSlikewiil6 baned by the statute of limit,IUons 'of ,Yassac:hu8t'ttS. (3) 'the suit 'brought in Masliacbilsetits' against Eliot in 1863 was not -duly, commenced. 'because it does not appear that he had no :last and ,ab.ode .known t() the Qtficer,and because no /rervhim perllon,ally. and, the rj)versal upon erro.rof the in the ,statuteo,f lim,itations. ',' The Massachusetts court JiojuflsdictioiJ of the action, brQllght agahi.stEli'ot by McCormick; in 1863. and the proceedings in that action noll and void. No V'alid havebeeil entered therein. The jtadgment entered therein was a nullity. and could ,have been avoided by plea without reversal. Its reversal :on erJ:Ofwas sucl10nly ifj'orID,." I», fact" a declarl!-/;ion. of, ,nullity, did ,running: of ,the of, Ih:i:Jitationli,) n()rreopen ,it after "','" ,ofllmJtat!ons of Il)inois 'faa, not by ,the pendell,cY,of. i1) Masllachu\letts. norcollJd an ;iction 'bll,ye been maiptainl'd, in Illinois at any time after the ·statutory 'rull,' w.p.etlwr ,before'o,rafter t1)e ,Massal;husetts jUQgllleq,t was declaredv<;j<l. (6) The statute of,limitations of Illinois, ,the plaintiff's domicile, having \:iarred, his ,claiw. it:is Jost altogether, and cannot be sued in the 8rtbe UJ,lited in, a ci rcuit where the localla w to recognlZEl'thebar oOhe statul,e of another ,state. ,(1) thirteenth s,ection of the Massacbusetts has no app1icati()n to cases where the, bar of the statute of the plainLiff's falllln pending prl?ceedings here, which within could only have effect as proceedings in rem. Such cases are the bar of :the Massachusetts statute by the act of 1880. incorporated in the ell!venth sect,ion, .and are not ,withdrawn from it Qythethirteenth section. ,(8) of years sitl(le the cause of aCtion accreates a'legal presumption of paywent, which can only be l't'butted by very conclusive evidence, and rio evidence capable of rebutting this presumption bas 'been 6fferealnthis case. {9) The plaintiff is entitled to interest only from the date oNhe writ, no demaljd having been shown. (10) The plaintiff llasbeen.gu.iltyof suchl!lrhes in the prosecution ofbis claim that he is not to interest, during the period} fron, )863 to 1880, when his pellding. in tile, courts of ,Massachusetts." , The judge, refused, so' to instruct .,the jury, but ruled; that upon the foregoing evidence the provisions of' the statute of limitations could not be: set up ,as a defense to this action;' that the burden of proof to show payment rested on the;lIefendant, and'1hat"thi'l evidence,lVas not suffi<Jient to, sustain 'this defense;' and that' the plaiuti,ff if entitied t() recover AugustS, 18(3) 'when' the
472
FEDERAL aEPORTER, yol.
43.
was stated between the parties. Upon the announcement of these rulings,. the defendant did not desire to go to the jury, bilt submitted to a verdict forthe plaintiff for the sum of $5,150.10, and alleged exceptions, which were allowed by the court, as well to these.· rulings as to the refusal,to. instruct as requested. The defendant moved for a new trial for misdirection in matter of law, and upon this motion the parties, by stipulatioilin"w.riting, submitted the questions of law arising upon the bill ofex<.1eptiQ,us to., this court for finaL decision, and waived the right to sue out a, writiof ,el1r91. " AI. :'W1J8to1l. and llenry W. Chaplitn. for. plaintiff. Geo1-g6]',utnam, and Conrad Reno;,' for· .defendant· .BeforefGRAy ,Justice, and NELSON, J. " r
(ajteli 8tp,ting the jaCl$"dsauove.) Actionsin the courts of the Sta.tesare, 4,oubtless governed by the statute of limitations .of the state in which the court is held, as construedbyrthe highest court of the state. Bank v; Eldred, 130U. S. 693, 9 Sup. Ct. Rep. 690; MOO'l'e8'v.'Barik, 104 U.8.. 625. By section 1 of the statoflirniJlltionS of (Pub. St.c. 1,97;) actions of conQr or implied, exceptactions:llponjudgmep-tsof courts of record, must be commenced within ,six years next after the cause of action accrues. By seotion 13·0£the same statute..... "if, b.anhetionduW cioIlllDe.I;lced w,ithin the time limited and allowed in ttie wri t faiisof a suftlCiellt 'sljrvice or return by this or'the an unavoidlibh'!r accIdent. or by a default ,Or negleCt of t,hllopicer to whom it is connnitt'ed, 'at-If the writ is abated or the action otherWIse avoided or defeated oy 'tlle of a j)IU:ty thereto, for any mattlli' of ,form, or if after a verdict forihe plaintiff the jUdgmellt is 'arrested, or i, a. Judgment for the plaintiff may commence a new acplaintiff is reyersedon a writ of tion for at any ti.me within one year after, the abatement or otiler determination of the original snit, or after the reversal of the jUdgment; 'and' if the 'cause IOfactiOll 'by la w survi the exeClltoror administrator of the plaintiff m,lycommence such new action within year." . :, 'By' tbli} ,'Qf Massachusetts, aa<ieclared by the supreme judicial court, :.serrice on the defendant is not necessary to the commencement of an actionjbt1tan action is dulycomll1enced by suing out a writ and :putting it 'ih'thehands of an officer, with intent thatitshall be iorthwitil to the oqhe saving clause in S!lrvedi the sta tute "of, ahove quoted, if an aqtlP-n,duly commenced ,w.ithjnthEl, peri9d of limitation, afterwards fails for want of due service ,by reason ,01'a ,mistake as to the residence of the defendant, (BuUock v. -Dean, 1211i1ete.;,Mass;, 15';) dr by non-'entry of the writ by a mistakeofth& clerk, (Allen v; SawteUe, 7 Gray, 165;) or if a judginent recovered therein isjudicial1ydeollued erroneous,and.as such voidiand held for naught, :whether byatechnical.reversal or otherwise,--,.,tp,e,plaintiff may bring a, new, action ,within one year after the failure of·theaction or the setting aside of the. judgment,· (Coffin. v. Cottle, 16, Pick. ·383,) even if the first action wlladl.smissed for want ofjurisdiction oHhe e.ourt'in which it was .b,l'ougliltj,{WoQ<u'vr:Hougftton, 1 Oray,,080.) 'And it,'has been. so :held
"
M'CORMICK
·v.
ELIOT,
473
by our predecessors, Mr. Justice CLIFFORD and Jui(ge LoWELL, in this court. Cald:weU v· .Harding; l Low. 326. In the case at bar, the first action was "duly commenced" by suing, out the writ, and putting it into the hands of an officer for service. The service was sufficient to make the judgment, until and unless by writ of error, sivecagainst the defendant. according to a uniform series of decisions ot the highest court of the state, the last Qf which was rend.ered in 18'85, in an action between these on this very judgment. McCormick v. Jiliske, 138 Mass. 379. Arid this judgment was reversedby that court on writ of error in Eliot v. McCormick, 144 Mass. 10, 10 N. E. Rep. 705, in -Which it was for the first tilne ,intimated (what has been since adjudged in' Needham v. Thayer. 147 Mass. 536, l8N. E. Rep. 429) that, under the fourteenth amendment of the constitution of the United States, and the decisions of the supreme court in Pen.rlOyer v. Neff, 95U. S, 714, and v. Alderson, 119 U. S. 185, 7 Sup. Ct. Rep. 165, a judgment rendered against ltn,absent defendant on such a s.ervice was w4011y void, except as to the property attached. This case is therefore within: both the letter and spirit of section 13, c. 1.97, Pub. St. Mass. It is equally clear that no presumption of payment from the lapse of 20 years can arise in this Case. in which the only evidence. bearing Upon this question is the testimony of the plaintiff's clerk that the claim 'Was neverp,l,lid, and the records showing uninterrupted attempts by the plaintiff to enforce it by judicial process. The case falls within the opinion ofthecourt in Allen v. Sawtelle, above cite<;i: ' "It is.certain that the plaintiff did not mean to permit his debt to remain for such length of time as would bar him from its recovery Without an attempt to enforce it. He used the diligence required by the ll\w 'Yhen he Institutedhis. first against the defendant., That.was throqgh no negligence or inattention of his own, and therefore there was nQ forbearance Qr delay from which apresumption could atise that the debt had already been in some way paid or discharged. Having been defeated in his 'firstsuit bys matter not affecting the merits of his claim, he has a right, since he selisonably proceeded with the second, flo prosec.ute it toa regular conclusil,>n,." 7 Gray, 160. The defendant further relies 011 the provision of the statute of Massachusetts of 1880, c. 98, r.e-enacted in Pub. St. c. 197, § 11, that "no action shall be brought by any person whose cause of action has been barred by the laws of any state, territory, or countr:y while he resided therein." But this statute, containing 110 words manifesting an intent of the legislature to give ,it a retrospective operation, must, like other statutes oflimitatioll, be -construed as prospective only, and therefore inapplicable to this case, in which the only residence of the ,defendant in Illinois was before its passage. Murray v. Gibson, 15 How. 421; Sohn v. Waterson, 17 Wall. 596; King v. TirreU, 2 Gray, 3311 Dickaon v. Railroad Co., 77 Ill. 331. ;This being a claim by a .principal against his agent,for money which the latter was bound to account for and pay over, clearly bears interest from the time that the cause of action ,accrued·. Dodge. v. PerkW;s, 9 Pick. 368; Foote v. Blanchard, 6 Allen, 221. Judgment on the verdict.
" ! ,
,}
dJ .':"
'WHITE It·' al., ,/ .'} .,
:;'BAtRNEY',
CollectOr., v\\ ,;.'}'
?;.;
",ji
tCo£rcuit Court,' So
May \6,
;t.l!9!!I)
phrase, "goOds desorlpand speoiftc'tradecmeaning other ,and Its ,a,p.a but, If not suoh '. " c!O'JiJmerelal phrase, should reoelve itS meanIng in ordInary epeedh and oonversation. &·1Uift4l!illu,Nnms Ii' NOT,,,,COl\O[ERClIAi;pmu.sE.' ,:,: ' , While these worde,'lof eimllar descp::illtioQ.,"havElbeen :held , courft in Greenleaf 'v;G6oIJlich, 1()l.:tr.S.278,to meall."similarityinpt'Oduot, Itt , 'ad,aa.ptationito,use,,.' and 'notiD IaPPll'8raOC;S,or, In Proces,' BOf,,mIlOU,fQ,oture, "the, ' ), "hPwever ,whioh Is ,mlide .Qt, something, and "'h!onr Whlln made.' ijas c' oharaoteristlcs' "thl'ch' are apparent to ttre !lllnees: and In ." 88,. to sun, ilari,tYlOf, PI', dUO,tth, mil,t.lerl,al Of, Wli1,' ,11" aI>l'OlJuct,' 18, m,ad,e, and ita , ; ISPP$IH'Ilq,oEl when may, be tail:en, fntB C9nelaeratIQl1. By; tqis, phrase, ,. O'fBiiil.llar Dieail't oOwpbeedwb,o!ly or iIi part of , mehall', or goat'e'baiir, and liIIIsd: fOl' dreSs g()odS, Whlch'lI.lso,'as pleted fabrios, possess qualities of genlll'lI.\ iQ.,ppearanoe.l cmaraofe.r, llnd texture like unto, ornear1y oorresponding to,ar generally resembling,the q.ualitles which a. , : tilllfU'ie'b.!delalnea, or delaillllll,'1 or :baraga mualil1 'delaine& : 'tlon," Ifa cOlnmElrcial phrBse," with frOI:l1 ttlli 'lnel,\pil1g Sn
..
'In; determining wbetl1er'goods Bre goods of similar deS(lriptibntC>'delalnes, mere-delalnes, or deilline!'t under W,qvision .for" all deulns in 'bal'egll delaines, cotb'Po'lied wholly or In laineii; pal'Hlf'worsted,:wool\:Ploliair, 01' go8tl's hair; audon ilIods"ofisimilar descrlp, '10,,II,j, p-l"'inedJn, se,'Ptipn9 of 14, 1 , St. 548,) ',' al'l! tobe (a) 'J,'b,e, rule 'whioh 18 to 'U,lIed'ln determinmg' " :whether tlie former goods are elmilar'Ol' dissimilar to the latter; {bltlie standard of in Piffereat varlet¥l8 of goods wfth ",blOh the former are, to aM found similar dr disslmllart and (0) . ,'wbat,l&re th6;i()rmer goods whloh arEl'to be.eompared With that etal1dardt
SUItLA'B: DBs6iuPirIO:*-DBTEtunliiAortoN.' '
iJ lpartill'dlar
0,
0.
,
J:J:: Ii
'At 1l1f!.:eq;
" Action to
, ,
baek::dtities.
:: , ' , .
',
efCGeQd:mg lA valueAO fer square yard, 'under the provision {or "allde1aines, cashmere delaines; muslin composed wholly.()l' 'in part of worsted i wool, mohair, or goat's hair, and all goods of similar description not ex1 ceediriginvalueAO' oents'pall contained in section 90Lthe ta.riff,acll of NlyJAi, 1862, (12 U. S. -St. 543,) aotAe;thaHll'ovisioD1·adutyof 2 per, sqtia:reyard was exacted:of the plaintiffs::by 88 ,collector of customs at that port; .iAgahisti thiJrolassificatidn! and, xaotionthe' claimirig that ,these goods were dutjableat6 percent. ridvciltrrem, instead of 2cerits per squalle!yard,.!lnder .the .provision "forj"manufp,ctUres not, otherwise provided,fot,composed,.of mixed maMriills 'in part o[,cotton,' si1kj wooli or worsted, '!hemp; jute,":Ol' ilax,"coritained in seption 13 of,theaforesaid tariff act, "ThiS; action was:btbughUi> recover claimeli to have been exacted. ", , "::' , J081epl&M' Deuel,Amum.,'W.Gri8t.D9ld,: andW.Wickham .Smith, ' for plaintiff8lf: Edwafti »itcheU, U. S. Atty., and TMmas Greenwood, Asato U. ,Atty., for deleudWnt., ',' Q : '.', , , ' "'" .'" :, ,