Urton v. Hunter, Harris & Co.

2 W. Va. 83 | W. Va. | 1867

Brown, President.

This is a supersedeas to a judgment of the circuit court of Nicholas county rendered in 1858.

It was an action of debt by the plaintiff, Urton, who is also plaintiff in error, against James Hunter, Thomas G, Harris, and John McCullough as partners under the style of Hunter, Harris & Co.

The plaintiff in his declaration counted ppon a promissory note alleged to have been executed by the defendants aforesaid, by their said firm name of Hunter, Harris & Co, Harris only was sei’ved with the procees, and was alone before the court at the trial. He pleaded the plea of nil debet, with an affidavit, in which he denied under oath, the partnership: and the jury found a verdict for the defendant.

The evidence shows that the defendant, Harris, was at the date of the-note partner in a firm composed of the following member, viz: James Hunter, Thomas Harris, and William B. Thompson*; and there was no evidence of any other firm of the name and style aforesaid.

The first point in this ease requiring the consideration of this court is whether the statute,- in Code ’of 1860, chap 177, sec. 19, p. 733, so alters the rule of the common law, which required the allegata and probata to correspond, as to warrant a verdict and judgment for the plaintiff against the defendant upon the facts stated. This is a new provision, and I am not aware that it has yet received construction by the appellate1 court,-though the practice under it has been conflicting in the1 circuit courts. And, it is perhaps to be regretted that the present case, though seeming to do so at the first blush, upon a more careful inspection does not offer a1 favorable opportunity for expressing an opinion on the subject. But without going beyond the requirements of the present case, it cannot now be done. And it is deemed the better and wiser course1 to- decide nothing, not necessary to the decision of the case under consideration. To warrant a verdict and judgment against the defendant, Harris, under the circumstances of this ease by virtue of the said statute, it was necessary that .the plaintiff, Urton, would have been entitled to recover, if he had sued the defendant, Harris, al'oue. If he had done soy Harris might have pleaded the non-joinder of his co-partners in abatement and must have defeated- a recovery against himself alone. Since therefore, the plaintiff would not have been entitled to recover against the defendant, Harris,, if he had sued him alone, so neither can he have judgment against him in this case, in which he had not sued the partner, Thompson. But in addition it is very clear that the contract declared on and the contract proved are different and distinct contracts, and the variance, therefore-, is1 fatal, with or without the statute. Gordon vs. Austin and others, 4 Term Rep., 326.

There were two1 other pleas filed by the defendant, viz: the statute of limitation in the State of Maryland, and a discharge by a Maryland court in bankruptcy, under a hank-rupt or insolvent act of that State. To the first plea, viz: of tlie statute of limitations aforesaid, the plaintiff pleaded specially, under a provision in the Maryland act of limitations, that the defendant before the expiration of the period of limitation, left the State of Maryland, so that the plaintiff was at an uncertainty of finding out the defendant and his effects. And to the other of the said pleas, viz: the discharge in bankruptcy, the plaintiff replied specially, that he was, at the date of the note sued on, a citizen of Virginia and not of Maryland. To both of which said replications the defendant rejoined generally and issues were thereupon joined.

The evidence set out in the bill of exceptions shows very clearly that the plaintiff was a citizen of Virginia, and also, that the defendant, Harris, left the State of Maryland before the debt sued on was barred in Maryland. And the jury, as before stated, found a verdict for the defendant.

If the Maryland acts did not bar the plaintiffs recovery in Virginia the said pleas and replications raised immaterial issues, and it would be equally immaterial how those issues were found by the jury.

And this raised the question how far it is competent for the State of Maryland to discharge her citizen from a liability which he has incurred to a citizen of Virginia. In other words, whether in this case, the law of the contract or of the forum is to govern.

It has been too well settled by repeated decisions to require confirmation, that the lex loci acts on the right; the lex fori on the remedy. “This is the rule,” says Chancellor Kent, “in all civilized countries, and it has become part of the jus gentium.” “ Upon the principle, that the time of limitation of actions is governed by the lex fori, a plea of the statute of limitations of the State where the contract is' made, is no bar to a suit brought in a foreign court to enforce the contract; though the plea of the statute, where the suit is brought, is a valid bar, even though brought upon a foreign judgment.” “ Though the foreign statutes of limitations may have closed upon the demand before the removal of the party to the new jurisdiction, yet it will be unavailing. The statutes of limitations in whose courts a suit is prosecuted must prevail in all actions.” 2 Kent Com., 462-3. In Ruggle vs. Keeler, 3 John., 264, the court said, “ we are bound to confine ourselves to our own statutes of limitations and could not regard that of any other State. Statutes of limitations are municipal regulations, founded on local policy, which have no coercive authority abroad and with which foreign or independent governments have no concern. The lex loci applies only to validity or interpretation of contracts and not to the time, mode or extent of the remedy.” The same doctrine is sustained by numerous authorities, among which may be considered, Jones’ adm’r vs. Hooks’ adm’r, 2 Rand., 303; Williams vs. Jones, 13 East., 439; Decomb vs. Savotier, 3 John. C. R., 217; Delavega vs. Vienna, 1 Barn and Adolph, 248; LeRoy vs. Beard, 8 How., 461; Ingraham vs. Arnold, 1 I.I. Marsh., 407; Henry vs. Sargeant, 13 N. H. Rep., 321; McElmoybe vs. Copen, 13 Peters; Finly vs. Vegier, 1 Bing., N. C. Rep., 151; Townsend vs. Jameson, 9 How., 407; Morris vs. Edes, 11 Martins’ La. Rep., 730; Smith vs. Spinald, 2 John., 198; Wood vs. Malin, 5 Halstead’s Rep., 208; Atwater vs. Townsend, 4 Conn. Rep., 47; Estes vs. Kyle, 1 Meigs’ Term Rep., 34, and 3 Litt. Rep., 285.

I think, therefore, that the said two special pleas, based upon the statutes of Maryland were immaterial pleas, and the replications thereto raised immaterial issues, and that the finding of the jury, though contrary to the evidence on the said issues, was also immaterial in that regard, and was right on the plea of nil debet, and the verdict being general for the defendant, was substantially right, and should not be disturbed in the appellate court.

The j udgment should be affirmed with costs to the defendant in error.

Maxwell, J.

I think it is pretty well settled that, if the parties to a contract were, when it was made, both citizens and inhabitants of the State in which it was made and to be performed, a discharge there of the debtor from the contract, though under the insolvent laws of the State, will bind the creditor and bar him from an action upon the contract in another State.

The plea in this ease which is intended to set up a discharge under the insolvent laws of Maryland is wholly insufficient, because it fails to set forth the statute under which such proceedings were had, that the court may see whether they were authorized by it or not.

There is no cause in the record to disturb the judgment below.

Judgment Arrirmed,