author: Mr. Justice DANIEL

text:
    William J. Hill, David M. Porter, and William F. Walker, v. The United States et al.
    Where the United States, as indorsees of a promissory note, recovered judgment against the’makers thereof, who thereupon filed a bill upon the equity side of the , court, and obtained an injunction to stay proceedings, this injunqtion was improvidenfly allowed.
    Tlje United States were made directly parties defendants; process was prayed immediately against them, and they were called upon to answer the several allegations in the bill.
    This course of proceeding falls within the principle that the government is not liable to he sued, except by its own consent, given by law.
    The bill must therefore be dismissed.
    This case came up from the Circuit Court of the United States for the Southern District of Mississippi, upon a certificate of division in opinion between the judges thereof.
    It was a bill filed on the equity side of the court, by Hill and the other complainants, against the United States, the Mississippi and Alabama Railroad Company, William M. Gwin, and William H. Shelton, to enjoin a judgment obtained against the complainants by the United States.
    The circumstances were these.
    In 1835, the receiver of public moneys for the Choctaw district in the State of Mississippi was found to be in debt to the government.
    On the 26th of September, 1835, the Solicitor of the Treasury issued a distress warrant, under the act of May, 1820, for the purpose of collecting the debt, and inclosed it to William M. Gwin, then Marshal of the United States for the State of Mississippi.
    The history of the transaction between 183.5 and 1839 need not be stated.
    In 1839, the marshal, by direction of the Solicitor qnd Secretary of the Treasury, received from the representative of the debtor (who was then dead) the sum of $ 30,000 in the notes of the Mississippi and Alabama Railroad Company, as collateral security for the debt, for the collection of which he had á distress warrant. The Railroad Company, in order to avoid a suit upon its notes, transferred to the District Attorney upwards of ,f> 78,000 of bills receivable of the bank. Amongst these bills receivable was a promissory-note for four thousand dollars, dated on the 12th' of April, 1838, payable six months ■after date to the Mississippi and Alabama Railroad Company, negotiable and payable at their banking-house in Brandon, and signed by William J. Hill, J. S. Rowland, D- M. Porter, and W. F. Walker.' The note was joint and several; Hill was the principal, aiid the others sureties.

      On the 15th of June, 1839, the District Attorney brought suit upon the note, in the nairte of the United States, against all the parties, and at November term obtained judgment.
    In January, 1840, a fi. fa. was issued, and in May, 1840, Hill, Porter, and Walker filed a bill on the equity'side of the court against the United States, the Mississippi and Alabama Railroad Company, William M. Gwin, and William H. Shelton, setting up certain equities, which need not be here particularly stated, and praying for an injunction, which was granted.
    All the parties answered, the district Attorney answering on behalf of the United States.
    In May, 1846, the cause was set down for hearing, upon the bill, answers, and exhibits.
    In November., 1846, the following proceedings took place.
    The United"States, by attorney, made the following motion, to wit: —
    “ Motion by R. M. Gaines, U. S. Attorney, to dissolve the injunction and dismiss the bill, as to .the United States, for want of jurisdiction as "to them, and also on .the merits.
    “ R. M. Gaines, U. S. Att’y.

    “ And afterwards, to wit, at the May term, A- D. 1847, of said court, to wit, on the 20th day of May, in the year of our Lord 1847, this cause came on to be heard before the Honorable Peter Y. Daniel and Samuel J. Gholson, upon the motion of the United States of America to dismiss this suit as to'them, and dissolve the injunction, for want of jurisdiction, and was argued by counsel. And the court 'having taken time to consider, and not being able to agree in opinion what decree should be made in the cause On said motion, one of the judges being of opinion that the said motion should be sustained, and the said bill dismissed and injunction dissolved, and the other being of opinion that the said motion should be overruled, it is therefore ordered, at the request of the counsel for both complainants and defendants, that said difference of opinion be .certified to the Supreme Court of the United States for .their decision, whether the said motion should be sustained or overruled.
    “ P. V. Daniel.
    S. J. Gholson.”
    Upon this certificate the case accordingly came Up.
    It was argued by Mr. Johnson (Attorney-General), for the United States,
    no counsel appearing upon the other side. He contended that, the United States not being liable to be sued except with its own consent given by law, and there being no law giving such consent in this case, jurisdiction did not exist, and cited the case of United States v. McLemore, 4 Howard, 286.
   Mr. Justice DANIEL

delivered the opinion of the court.

This case comes before us from the Circuit Court for the Southern District of Mississippi, upon a certificate of division in opinion between the judges on the following facts and questions certified from that court.

The United States, as the indorsees of the Mississippi an'd Alabama Railroad Company, instituted an action of assumpsit in the court above mentioned, on a promissory note given by William J. Hill, J. S. Rowland, D. M. Porter, and W. F. Walker to the said railroad" company, for the'sum of four thousand dollars. .• At the November term of the court in 1839, the United States, upon a trial at law upon issues joined, first, upon the plea of non-assumpsit, and secondly, upon the plea of payment of the note before its indorsement and delivery to the plaintiffs, obtained a verdict and judgment in damages for the sum of $ 4,353.32. Upon the suing out of an execution on this judgment, the defendants filed a bill on the equity side of the Circuit Court, and obtained from the District Judge.an injunction, upon grounds which perhaps might, under the pleadings in the caiise, have been as regularly insisted upon at law, between the proper parties, as they could be in equity; but whether forming a well-foünded defence at law, or not, is immaterial in the inquiry now presented. In the bill filed by Hill and others, the United States are made directly parties defendants ; process is prayed immediately against them; they are called upon to answer the several allegations in the bill, and a perpetual injunction is prayed for to the judgment obtained by them. To the bill of the complainants the attorney for the "United States filed in their behalf an answer in extenso, but afterwards moved the court to dissolve the injunction and dis-> miss the bill as to the United States, for want of jurisdiction as to them, upon which motion the order and certificate now before this court were made in the following terms: — “ And afterwards, to wit, at the May term of said court, viz. on the 20th day of May, A. D. 1847, this cause came on to be heard before the Hon. Peter Y. Daniel and Samuel J. Gholson, upon the motion of the United States of America to dismiss this suit as to them, arid dissolve the injunction for want-of jurisdiction, and was argued by counsel. And the court having taken time to consider, and not being able to agree in opinion what decree should be made in the cause on said motion, one of th'e-judges being of opinion that the said motion should be sustained, and the said bill dismissed and injunction dissolved, and the other being of opinion that the said motion should be overruled, it is therefore ordered, at the request of the counsel for both complainants and defendants, that said difference of opinion be certified to the Supreme Court of the United States for their decision, whether the said motion should be sustained or overruled.”

The question here propounded, without any necessity for recurrence to particular examples, would seem to meet its solution in' the regular and best-settled principles of public law. No maxim is thought to be better established, or more universally assented to, than that which ordains that a sovereign, or a government representing the sovereign, cannot ex delicto be amenable to its own creatures or agents employed under its own authority for the fulfilment merely of its own legitimate ends. A departure from-this maxim can be sustained only upon the ground of permission on the part of the sovereign or the government expressly declared, and an attempt to overrule or to impair it on a foundation independently of such permission must involve an inconsistency and confusion, both in theory and practice, subversive of regulated order or power. Upon the principle here stated it has been, that, in cases of private grievance proceeding from the crown, the petition of right in England has been the nearest approach to an adversary position to the government that has been tolerated; and upon the same principle it is that, in our own country, in instances of imperfect land titles, special legislation has been adopted to permit the jurisdiction of the courts upon the. rights of the government. Without dilating upon, the propriety' or necessity of the principle here stated, or seeking to.multiply examples of its enforcement, we content ourselves with referring to a single and recent case in this court, which appears to cover the one now before us in all its features. We allude to the case of the United States v. McLemore, in 4 Howard, 286, where it is broadly laid down as the law, that a Circuit Court cannot entertain a bill on the equity side of the court, praying that the. United States may be perpetually enjoined from proceeding upon adjudgment obtained by them, as the government is not liable to be sued, except by its own consent given by law. We therefore direct it to be certified to the Circuit Court for the Southern District of Mississippi, that the motion on behalf of the United States in this cause should have been sustained, and that the bill as to the United States should be dismissed, as having been improvidently allowed.

Order.

This cause came on to be heard on the transcript of the record .from the Circuit Court of the United States for the Southern District of Mississippi, and on the point or question on which the judges of the said Circuit Court were opposed'in opinion, and. which was certified to this court for its opinion, agreeably to the- act of-Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the motion in behalf of the United States in this cause should have been sustained, and that the bill as to the United States should be dismissed, as having been improvidently allowed. Whereupon it is now here ordered and decreed by this court, that it be so certified to the said Circuit Court.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    William H. Tayloe, Appellant, v. The Merchants’ Fire Insurance Company of Baltimore.
    Where there was a correspondence relating to the insurance of a house against fire, the insurance company making known the terms upon which they were willing to insure, the contract was complete when the insured placed a letter in the post-office accepting the terms.
    The house having-been burned down whilst the letter of acceptance was in progress by the mail the company were held responsible.
    On the acceptance of the terms proposed, transmitted by due course of mail to the company, the minds of both parties have met on the subject, in the mode contemplated at the time of entering upon the negotiation, and the contract becomes complete.
    The practice of this company was to date a policy from the time when the acceptance was made known to their agent.
    The agent of the company having instructed the applicant to “ send him his check for the premium, and the business was done,” the transmission of the check by mail was a sufficient payment of the premium within the terms of the policy. ■
    One of the conditions annexed to the policy was, that preliminary proofs of. the loss should be furnished to the company within a reasonable time. The fire occurred on the 22d of December, 1844, and the preliminary proofs were furnished on the ,24th of líovember, 1845. This would have been too late, but that the company niust be considered to have waived their being furnished, by refusing to issue a policy, and denying their responsibility altogether.
    The cases in 2 Peters, 25, and 10 Peters, 507, examined.
    A court of equity, having obtained jurisdiction to enforce a specific performance of the contract by compelling the company to issue a policy,-can proceed to give such final relief as the circumstances of the case demand.
    A prayer for general relief in this case covers and includes a prayer for specific performance.

      This was an appeal from the Circuit Court of the United States for the District of Maryland.
    A. decree pro forma was entered, under the agreement of the parties, dismissing a bill filed by Tayloe against the insurance company under the following circumstances.
    The office of the insurance company was at Baltimore, but there was an agent at Fredericksburg, Virginia, who was John Minor.
    On the 25th of November, 1844, this agent addressed to the company the following letter.
    “ Fredericksburg, Virginia, November 25, 1844.
    “ Merchants’ Fire Insurance Co. of Baltimore : —
    “ The undersigned, William H. Tayloe, desires to effect insurance to the amount -of eight thousand dollars on his dwelling-house, of stone covered with wood; main building about ninety by- sixty feet, two stories ; two wings, two stories, covered with wood, about fifty by fifty feet, and connected with the main building by covered krays of stone, covered with wood. The above-mentioned house is known by the name of Mt. Airy, and is situated in Richmond County, about two miles and a half from the court-house.
    “ J. Minor,
    for William H. Tayloe.
    “P. S. Mr. Tayloe (not Mr. Taylor) passed through this place this morning on his way to Alabama, and, not having time to attend to his application, desired me to forward one in his name. The measures given are as nearly correct as I can remember ; but, as the building is worth double the amount proposed, the measures are not of much importance. I have long been familiarly acquainted with the house. One thing I should state, that it is- built of red sandstone, which in my opinion will not stand fire. Mr. Tayloe’s family inhabits the house, and he will return in January or February; meanwhile, I am to communicate to him your answer.
    “ J. Minor.”
    On the 30th of November, 1844, the following answer was received.
    “ M. F. I. Co., Baltimore, November 30, 1844.
    “ J. Minor, Esq.:—
    “Dear Sir,- — Yours of 25th and account of 28th are received. I have forwarded Mr. B.’s policy. Mr. - Tayloe’s risk will be taken at the same rate as Mr. Bernard’s, viz. 70 cts. on $ 8,000, p. $ 56. Policy, $ 1.
    “ Yours, respectfully,
    “Geo. B. Coade, Secretary.'1'1

    When this letter was received by Minor, Tayloe was in Al- • abama, and Minor addressed to him the following letter, which he directed to Demopolis, Alabama, and which was sent from Demopolis to Macon, where Tayloe then was. '
    “ Fredericksburg, December 2, 1844.
    “ This day I received from the secretary of the board of the Merchants’ Fire Insurance Company of Baltimore an answer to your application for insurance to the amount of $ 8,000 on the Mount. Airy house ,• rate 70.
    Premium on $ 8,000 . . . $> 56.00
    Policy . . . . . . 1.00
    |5ÑÓÓ
    “ Should you desire to effect the above insurance, send me your check, payable to my order, for $ 57, and the business is concluded.”
    This letter, having been misdirected by Minor, did not reach the appellant until the 20th of December, 1844, and on the next day he wrote Minor the following letter.
    . “ Macon, Marengo County, Ala., 21 st Dec., 1844.
    “ Dear Minor, — Yours of the 2d came to hand yesterday, and I send you my check for fifty-seven .dollars, as the premium of insurance on Mount Airy house. You will please deposit the policy in the Bank of Yirginia, in your to-frn, &c. &c.”-
    Meni. indorsed, “ Mena, rec’d December 31st, 1844.”

      (Check Inclosed.)

    “ Marengo County, Ala., 21 st Dec., 1844.
    “ $ 57. Bank of Yirginia, Fred’g, pay John Minor, Esq., or order, fifty-seven dollars, premium of insurance on Mt. Airy house.
    “ Wm. H. Tayloe.”
    Written across the face, — “ This check not to be presented.”
    On the 22d of December, 1844, the house was burned down.

      On the 1st of January, 1845, Minor addressed a letter to Tayloe, from which the following is an extract.

      “ Fredericksburg, Jan. 1st, 1845.
    “ My dear friend, — Your letter of the 21st ultimo came to hand yesterday,' unhappily too late. You have before this time, perhaps, received information that the centre building of Mount Airy was burnt on Sunday week (Dec. 22d),” &c„ &e.
    Mr. Minor was informed of the .loss by Mr. Charles Tayloe,
    ■ on the day after it took place.
    In the summer of 1845, Tayloe called at the office of the company, and had some conversation respecting the .insurance’ and the burning of his house, and in November, 1.845, furnished them with the preliminary proofs of the loss which are always required to be handed in as soon as possible after the loss, by the conditions annexed to the printed policies of the company.
    To the letter -accompanying the preliminary proof, the company returned the following answer.

      “ Merchants' Fire Insurance Co., Baltimore, Dec. 15th, 1845.
    “ W. H. Tayloe, Esq. : —
    ■ “ Dear Sir, — The Merchants’ Fire Insurance Company has received your letter of 24th November, 1845, containing notice of claim for loss by fire on 22d December, 1844, and I am instructed to reply that the company declines to pay the claim as thereby made by you, and that, under the circumstances of the case, it does not waive any grounds of defence whatever, but will avail itself of all and any that by law it may.
    “ Very respectfully, your obedient servant,
    (Signed,). Geo. B. Coale, Sec'y."

    During the -progress of the suit, the following admission was filed in the Circuit Court by the respective counsel.

      “ Admission.

      “ It is admitted that the printed advertisement (marked complainant’s No.. 1) of John Minor, dated on the 27th July, 1842, giving notice of his agency,' was published by him in a. newspaper published in Fredericksburg, Yirginia. It is also admitted, that the letter of said Minor to Wm. H. Tayloe, the complainant, dated December 2d, 1844 (marked complainant’s' No. 2), was written ’by said Minor, and addresséd to said Tay.loe, at Demopolis,. Alabama, and afterwards sent from Demonolis to Macon, Alabama, at the dates of the two postmarks thereon, where said Tayloe then was ; and that the letter from said Minor to said Tayloe; dated 1st January, 1844 (1845), (marked complainant’s No. 3,) was written by said Minor. It is agreed that the charter of the said defendants (Act of Maryland, 1835, ch. 65, and supplements) may be used by either party, and read from the printed laws, as if proved; and also it is admitted that the printed blank policy, filed with the defendants’ answer as an exhibit, is the form uniformly, used by said defendants from its incorporation till this time, and that the exhibits G, H, and I, with the defendants’ answer, are admitted ; and all of said above papers may be used, at the trial of the above cause, as if the same had been regularly proved by the respective parties.
    “John Glenn,for Complainant.

    John J. Lloyd, for Defendants.”
    In April, 1846, Tayloe filed his bill in the Circuit Court. It stated the substance of the facts above mentioned, and concluded thus:—
    “ To the end, therefore, that he may have redress on the premises, <and that by a decree of this court the said defendants may be ordered and adjudged to pay to your orator the amount of actual loss which he has sustained, to an amount not exceeding eight thousand dollars, and that he may have such fur- . ther relief as his case may require : may it please your honors to-order that a writ of subpoena may issue, directed to said Merchants’ Fire Insurance Company of Baltimore, to be and appear in this court to answer this bill, and to stand to and abide by the decree in the premises; and he will ever pray, &c.
    “ R. Johnson,
    J. Glenn.”
    The answer of the appellees admits, that John Minor was the agent of the appellees, at Fredericksburg, Yirginia, “ to receive and forward to appellees proposals for insurance against fire ” ; that said agent 'did, on 25th of November, 1844, in behalf of the appellant, send a proposal for insurance, which was answered on' the 30th of November, 1844; but that no reply was received from appellant till the 31st of December, 1844, by a letter inclosing appellant’s check for the amount of the premium. That immediately on the receipt of said reply, the appellant was informed that it came too late.; that the dwelling' proposed to be insured had been burnt on the 22d of December, 1844, and that the check had not been and would not be presented for payment, and that said cheek was cancelled. The answer further exhibits a copy of the printed form of the policy uniformly used by the appellees in 1844, and before and since that time, and avers that it contains the terms and conditions on which the appellees insured, .and that all answers of the appellees to applications for insurance against fire have always been with reference to the terms of said policy, and the printed conditions thereto annexed; and it further avers, that the reply of the appellees to the application on. behalf of the appellant, in this instance, was made with reference to said terms and printed conditions, and that except on those terms and conditions the appellees would not and did not offer to insure the appellant. The answer further denies that any contract of insurance was at any time made by appellees with .the appellant, or that any premium of insurance wás paid by appellant or received by appellees, or that the appellant had a right to demand a policy of insurance, or payment for loss by fire. It also denies that the appellant, before filing his bill, required appellees to furnish him with a policy of insurance, or that any demand of payment for the loss by fire .was made, except as therein specified, in the summer of 1845, and after that time, as particularly set forth in the. answer. The answer further insists, that, if ■ it should be held that the transactions relating to said application did amount to a contract of insurance, yet it was a contract on the -terms and conditions specified in the policy, and that the appellant never complied therewith, and particularly never complied with the seventh printed condition which is set forth in the answer, and therefore he is not entitled to demand payment.
    The blank policy (which, it is admitted, — see Admission, supra, — “is the form uniformly used by the appellees from their incorporation till this time”) provides, “ that the amount of such loss or damage as the assured shall be entitled to receive by virtue of this policy shall be paid within sixty days after notice and proof thereof made by the assured in conformity to thé conditions of this corporation subjoined to this policy.”
    It also provides, that the “ insurance is made and accepted in reference to the conditions which accompany these presents; and in every case the said conditions are to be used to explain the rights and obligations of the parties, except so far forth as the policy itself specially declares those rights and obligations.”
    The fifth condition is, — “ No insurance will be considered as made, or binding, until the premium be actually paid.”
    The seventh condition provides, that “all persons insured by this company, sustaining 'any loss or damage by fire, are forthwith to give notice to the company, and as soon thereafter as possible to deliver in as particular an account of their loss, or damage, signed by their own 'hands, as the nature of the/case will admit, and make proof of the same by their oath or affirmation,” &c., &c, “And, until'such affidavits and certificates are produced, the loss shall not be payable.”
    The appellant examined several witnesses under a commission issued to . Fredericksburg, Va. John Minor, the agent, proves that- the appellant authorized and requested him to apply to- the appellees to effect the insurance, and that in consequence thereof the application was written by him. That on the 31st of December, 1844, he received a letter from appellant inclosing his check for $ 57, which, the appellant directed to be applied to the payment of the insurance ■ on the property, but that the check was never presented for payment, because the property on which the insurance- was to have been, effected was destroyed on the 22d of December, 1844. That soon after the receipt of said letter and check, the deponent wrote to • appellant that his check had been received, but too late. And’on his cross-examination he proves that he field said check subject to appellant’s order, and-wrote across its face, “ This check is not to be presented,” of all which he duly advised the appellant by letter written, as he thinks, immediately after the receipt of the check, and that when the appellant returned to Tirginia, deponent told- him he was ready to return the check,. and tendered it to him, &c. ; that h.e kept it, by appellant’s direction, but always subject to appellant’s authority. He also proves, in answer to the sixth cross^interrogatory, that, if there had been no fire before the receipt of the check, and a policy had been issued, the insurance, according to the custom and practice of his agency, would have begun, in ordinary cases, on the day on which payment of the check was made; but that in this particular case, as deponent was willing to- cash the appellant’s check, it would have begun on the day the check came to hand.
    In November, 1847, the cause came on for trial, when the Circuit Court-passed a decree, (which it has already been stated was pro formo* under the agreement of the parties,) that the bill should be dismissed, with costs.
    The complainant, Tayloe, appealed to this court.
    It was- argued by .Mr. Johnson (Attorney-General), for the appellant, and by Mr. Lloyd and Mr. Nelson, for the appellees.
    For the appellant it was contended, <—
    1st. That on the 21st of December, 1844, a contract for the insurance of the appellant’s house of Mount Airy was entered into between him and the appellees, through their agent, and the premium paid by' the appellant as agreed on, and that he was entitled to a policy of insurance accordingly, taking effect from that day. Story on .Contracts, §§ 378, 384, and the cases cited in the notes ; 1 Duer on Insurance, 67, 68, and the cases cited in notes 8 and 9, pages 114 to 130; Hamilton v. Lycoming Insurance Co., 5 Barr; 339; Story on Agency, §§ 17, 18, 19, 126, 127; Lightbody v. The North American Insurance Co., 23 Wendell, 22; Armistead v. The Merchants’ Fire Insurance Co. of Baltimore, Circuit Court U. S. Md., unreported.
    2d. That the- loss to the extent of the whole amount insured occurred after the policy took effect, and that the loss is recoverable in the present suit; 1 Duer on Insurance, 66; Perkins v. The Washington Insurance Co., 4 Cowen, 646; Carpenter v. The Mutual Safety Insurance Co., 4 Sandford, 410.
    3d. That the delay in furnishing the preliminary proofs was occasioned by the appellees, who cannot in consequence take advantage of it, and that the appellees have virtually waived their production. Columbia Insurance Co. v. Lawrence, 10 Peters, 514; Cornell v. Leroy, 9 Wendell, 165; Turley v. The North American Fire Insurance Co., 25 Wendell, 378'; McMasters v. The Westchester Mutual Insurance Co., 25 Wendell, 382; Allegre v. The Maryland Insurance Co., 6 Harr. & Johns. 412;' Armistead v. The Merchants’ Fire Insurance Co. of Baltimore, supra.

    The counsel for the appellees contended, —
    ' 1st. That the appellant has not shown by the evidence any contract of insurance on the part of the appellees in respect of the property destroyed,
    2d. That, assuming such contract to have been shown, the appellant has not complied.with its terms and stipulations so as to entitle him to recover from the appellees. The Columbia Insurance Co. v. Lawrence, 2 Pet. 25; Columbia Insurance Co. v. Lawrence, 10 Peters, 507; Carpenter v. The Prov. Wash. Insurance Co., 16 Peters, 496; Carpenter v. The Prov. Wash. Ins. Co., 4 How. 185; Leadbetter v. Insurance Co., 13 Maine, 265; Worsley v. Wood and others, 6 Durnf. & East, 710; Oldman v. Bewicke, 2 H. Black. 577, note a; Inman v. The Western Fire Insurance Co., 12 Wendell, 452; Edwards v. The Baltimore Fire Insurance Co., 3 Gill, 177,
    3d. That even if the appellant hás shown the existence of the allege.d contract, and his compliance with its terms, he has. misconceived his remedy,, a court of law being competent to afford him adequate redress. Act of Congress approved 24th September, 1789, <§> 16.
    4th. That, if relievable in equity, the bill contains no sufficient statement of the contract sought to be enforced, or of the performance of the terms thereof by the appellant. 2 Story’s Equity, §§ 736, 771; Colson v. Thompson, 2 Wheaton, 336; Cross v. Cohen, 3 Gill, 257; Carpenter v. Prov. Wash. Ins. Co., 16 Peters, 496; Same v. Same, 4 Howard, 185.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court for the District of Maryland, which was rendered for the defendants.

The case in the court below was this. William H. Tayloe, of Richmond County, Virginia, applied to John Minor, the agent of the defendants, residing at Fredericksburg in that State, for an insurance upon his dwelling-house to the amount of $> 8,000 for one year, and, as he was about leaving home for the State of Alabama, desired the agent to make the application in his behalf.

The application was made accordingly, under the date of 25th November, 1844, and an answer received from the secretary of the company, stating that the risk would be taken at seventy cents on the thousand dollars, the premium amounting to the sum of fifty-six dollars. The agent. stated in the application to the company the reason why it had not been signed by Tayloe; that he had gone to the State of Alabama on business, and would not return till February following ; and that he was desired to communicate to him at that place the answer of the company.

On receiving the answer, the agent mailed a letter directed to Tayloe, under date of the 2d of Deceml er, advising him of the terms of the insurance, and adding, Snould you desire to effect the insurance, send me your check payable to my order for $ 57, and the business is concluded.” The additional dollar was added for the policy.

This letter, in consequence of a misdirection, did not reach Tayloe till the 20th of the month ; who, on the next day, mailed a letter in answer to the agent, expressing his assent to the terms, and inclosing his check for the premium as requested. He also desired that the policy should be deposited in the bank for safe-keeping. This letter of acceptance was received on the 31st at Fredericksburg by the agent,-who mailed a letter in answer the next day, communicating to Tayloe his refusal to carry into effect the insurance,.on the ground -that his acceptance. came too late, the centre building of the dwelling-house in the mean time, on the 22d of the month,, having been, consumed by fire.

The company, on being advised of the facts, confirmed the view taken of the case by their agent; and refused to issue the policy, or pay the loss.

A bill was filed in the court below by the insured against the company, setting forth, substantially, the above facts, and praying that the defendants might be decreed to pay the loss, or for such other relief as the complainant might be entitled to.

I. Several objections have been taken to the right of the complainant to recover, which it tvill be necessary to notice ; but the principal one is, that the contract of insurance was not complete at the time the loss happened,, and therefore, that the risk proposed to be assumed had never attached..

Two positions-have been taken by the counsel for the company for the purpose of establishing this ground of defence.

1. The want of notice to the agent- of the company of the acceptance of the terms of the insurance; and,

2. The non-payment of the premium.

The first position assumes that, where the company have made an offer through the' mail to insure upon cértain terms, the agreement is not consummated by the mere acceptance of the offer by the party to whom it is addressed ; that the contract is still open and incomplete until the notice of acceptance is received ; and that the company are at liberty -to withdraw the offer at any time before the arrival of the notice; and this even without communicating notice of the withdrawal to 'the applicant; — in other words, that the assent of the company, express or implied, after the acceptance of the terms proposed by the insured, is essential to a consummation of the contract.

The effect of this construction is, to leave the property of the insured uncovered until his acceptance of the offer has reached the company, and has received their assent; for, if. the contract is incomplete until notice of the acceptance, till then the company may retract the offer, as neither party is bound-until the negotiation has resulted in á complete bargain between the parties. .

In' our apprehension, this view of the transaction is not in accordance with the usages and practice of these companies in taking risks; nor with the understanding of merchants' and other business .men dealing with them; nor with the principles of law, settled in analogous cases, governing contracts entered into by correspondence between parties residing at a distance.

On the contrary, we are of opinion that .an offer under the circumstances stated, prescribing the terms of insurance, is intended, and is to be deemed, a valid undertaking on the part of the company, that they will be bound, according to the terms tendered, if an answer is transmitted in due course of mail, accepting them ; and that it cannot be withdrawn, unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the acceptance has been transmitted.

This view of the effect of the correspondence seems to us to be but carrying out the intent of the parties, as plainly manifested by their acts and declarations.

Oh the acceptance of the terms proposed, transmitted by due course of mail to the company, the minds of both, parties have met on the subject, in the mode contemplated at the time of entering upon the negotiation, and the contract becomes complete. The party to whom the proposal is addressed has a right to regard it as intended as a continuing offer until it shall have reached him, and shall be in due time accepted or rejected.

Such is the plain import of the offer. And besides, upon any other view, the proposal amounts tp nothing, as the acceptance would.be'but the adoption of the terms tendered, to be, in turn, proposed by the applicant to the company for their approval or rejection. For, if the contract is still open until the company is advised of an acceptance, it follows, of course, that the acceptance may be repudiated at any time before the notice is received. Nothing is effectually accomplished by an act of acceptance.

It is apparent, therefore, that such an interpretation of the acts of the parties would defeat the object which both had in view in entering upon the correspondence.

The fallacy of the argiiment, in our judgment, consists in the assumption, that the contract cannot be consummated without a knowledge on the part of the company that the offer has been accepted. This, is the point of the objection. But a little reflection will show, that, in all cases' of contracts entered into between parties at a distance by correspondence, it is impossible that both should have a knowledge of it the moment it becomes complete. This can only exist where both parties are present.

The position may be illustrated by the case before us. If the contract became complete, as we think it did, on the acceptance of the offer by.the applicant, oh the,21st December, 1844, the'.company, of course, could have no knowledge of it until the letter of acceptance reached the agent, on the 31st of the month; and, on the other hand, upon the hypothesis it was not complete until notice of the acceptance, and then became so, the applicant could have no knowledge of it at the time it took effect. In either aspect, and, indeed, in any aspect in which the case can be presented, one of the parties must be unadvised of the time when the contract takes effect, as its consummation must depend upon the act of one of them in the absence of the other.

The negotiation being carried on through the mail, the offer and. acceptance cannot occur at the same moment of time ; nor, for the same reason, can the meeting of the minds of the parties on the subject be known by each at the. moment of concurrence the acceptance must succeed the offer after the lapse of some interval of time ; and, if the process is to be carried farther in order to complete the bargain, and notice of the acceptance must be received, the only effect is to reverse the position of the parties, changing the knowledge of the completion from the one party to the other.

It is obviously impossible, therefore, under the circumstances stated, ever to perfect a contract by correspondence, if a knowledge of both parties at the moment they become bound is an essential element in making out the obligation. And as it must take effect, if effect is given at all to an endeavour to enter into a contract by correspondence, in the absence of the knowledge of one of the parties at the time-of its consummation, it seems to us more consistent with the. acts and declarations of the parties, to consider it complete on the transmission of the acceptance of the offer in the way they themselves contemplated ; instead of postponing its completion till notice of such- acceptance has been received and assented to by the company.

For why make the offer, unless intended that an assent to its terms should bind them ? And why require any further assent on their part, after an unconditional acceptance by the party to whom it is addressed ?

We have said that this view is in accordance with the usages and practice of these companies, as well as with the general principles of law governing contracts entered into by absent parties.

In the instructions of this company to their agent at Fredericksburg, he is advised to transmit all applications for insurance to the office for consideration ; and that, upon the receipt of an answer, if the applicant accepts the terms, the contract is considered complete without waiting to communicate the acceptance to the-company; and the policy to be thereafter issued is to bear date from the time of the acceptance.

The company desire no further communication on the subject, after they have settled upon the terms of the risk,, and sent them for the inspection of the applicant, in order to the consummation of the bargain. The communication of the acceptance by the agent afterwards is to enable them to make out the policy. The contract is regarded as complete on' the acceptance of the terms.

This appears, also, to have been the understanding of the agent; for, on communicating to the insured the terms received from the company, he observes, “ Should you desire to effect the above insurance, send me your check payable to my order for fifty-seven dollars, and the business is concluded ” ; obviously enough importing, that no other step would be necessary to give effect to the insurance of the property upon the terms stated.

The cases of Adams v. Linsdell, 1 Barn. & Ald. 681, and Mactier’s Adm’rs v. Frith, 6 Wend. 104, are authorities to show . that the above view is in conformity with the general principles of law governing the formation of all contracts entered into between parties residing at a distance by means of correspondence.

The unqualified acceptance by the one of the terms proposed by the other, transmitted by due course of mail, is regarded as closing the bargain, from the time of the transmission of the acceptance.

This is, also, the effect of the case of Eliason v. Henshaw, 4 Wheat. 228, in this court, though. the point was not necessarily involved in the. decision of the case. The acceptance there had not been according to the terms of the bargain proposed, for which reason the plaintiff failed.

2.' The next position against the claim is the non-payment • of the premium.

One of the conditions annexed to the policies of the company is, that no insurance will be considered as made or binding until the premium be actually paid; and one of the instructions to the agent was, that no credit, should be given for premiums under any circumstances.

But the answer to this objection is, that the premium, in judgment of law,, was actually paid at the time the contract became complete. The mode of payment had not been prescribed by the company, whether in specie, bills of a particular bank, or otherwise; the agent, therefore, was at liberty to exercise ■ a discretion in the matter, and prescribe the mode of payment; and, accordingly, we find him directing, in this case, that it may be paid by a check payable to his order for the amount. It is admitted that the insured had funds in the bank upon which it was drawn, at all times from the date of the check till it was- received by the agent, sufficient to meet it; and that it would have been paid on presentment.

It is not doubted, that, if the check for the premium had been received by the agent from the hands of the insured, it would have been sufficient; and in the view we have taken of the case, the transmission of it by mail, according to the directions given, amounts, in judgment of law, to the same thing. Doubtless, if the check had been lost or destroyed in the transmission, the insured would have been bound to make it good; but the agent, in this respect, trusted to his responsibility, having full confidence in his ability and good faith in the transaction.

II. Another objection taken to the recovery is, that the usual preliminary .proofs were not furnished, according to the requirement of the seventh article of the conditions .annexed to the policies of the company. These are required to be furnished within a reasonable time after the happening of the loss. The fire occurred on the 22d of December, 1844, and • the preliminary proofs were not furnished till the 24th of November, 1845. This was, doubtless, too late, and the objection would have been fatal to the right of the complainant, if the production of these proofs were essential to the recovery.

But the answer is, that the ground upon which the company originally placed their resistance to the payment of the loss, and which is still mainly relied on as fatal to the proceedings, operated as a waiver of the necessity for the production of the preliminary proofs ; and that is, that no obligation to insure the loss was ever entered into by the company, the contract being incomplete at the time it occurred. On this ground they refused to issue the policy, which would have imposed upon the insured a strict compliance with its conditions; or to recognize any obligations arising out of the arrangement between him and their agent.

The objection went to the foundation of the claim, which, in connection with the refusal to issue the policy, superseded the necessity of producing these proofs; as the production would have been but an idle ceremony on the pari of the insured, in the further prosecution of his right. Why produce them after the company had denied the contract, and refused the policy ?

The case of the Columbian Insurance Company v. Lawrence, 2 Peters, 25, has been referred to on this point. An objection was there taken, on the trial, to the sufficiency of the preliminary proofs, on the ground that the certificate of the magistrate was not in conformity with the ninth article of the conditions. The particular objection had not been taken by the company when the proofs were furnished, although several others had been, to their liability; and the court left to the jury the question, among others, whether the company had not thereby waived the objection to the sufficiency of the certificate.

The plaintiff recovered; and on the motion for a new trial, among other grounds assigned for granting it, was this instruction of the court. Jt was held that there was no evidence in the case from which the jury could properly infer a waiver.

The preliminaryproofs had been presented to the company on the 16th of February, 1824, soon after the loss. The suit was discontinued,' and a new certificate procured from the magistrate correcting the defects in the first, and furnished to the company, on the 14th of February, 1829, five years after the first had been delivered. A new suit was brought, and the case as reported the second timé will be found in 10 Peters,.507.

On the second trial, the objection was taken that the certificate had not been produced within a reasonable time after the loss; but the court held otherwise, placing their decision upon the ground, that the laches were not properly imputable to the insured, but to the company, on account of their neglect to give notice of the defect when the first certificate was presented, and of the mistaken confidence which the party had placed in them. The court say, “If the company had contemplated the objection, it would have been but ordinary fair-dealing to have apprised the plaintiff of it; for it was then obvious that the defect might have been immediately supplied; as it was, the company, unintentionally it may be, by their silence misled him.”

It is manifest, on an examination, of the two cases, that the doctrine of the first on this point of waiver was virtually overruled, for, if maintained in the second, it would have upheld the ruling at the Circuit in the first. The reasons given in support of the corrected certificate, procured and furnished some five years after the loss, are cogent and unanswerable in favor of the position, that the conduct of the company in not objecting to the defect in the. first one, at the time it was furnished, operated to mislead the party, and should have been regarded as a waiver of the objection.

The cases are very full upon this point, and clearly establish the position that the preliminary proofs, under the circumstances, stated in this case, were dispensed with by the company, as inferrible from the ground upon which they placed their denial of liability. 9 Wend. 165; 25 ib. 378, 382; 6 Harr. & Johns. 412; 6 Cow. 404.

III. It has also been objected, that the plaintiff had an adequate remedy at law, and was not, therefore, under the necessity of resorting to a court of equity; which may very well be admitted.

But it by no means follows from this, that a court of chancery will not entertain jurisdiction. Had the suit been instituted before the loss occurred, the appropriate, if not the only, remedy would have been, in that court, to enforce a specific performance,- and compel the company to issue the policy. And this remedy is as ‘appropriate after as before the loss, if not as essential, in Older to facilitate the proceedings at law. No doubt, a Count could have been framed upon the agreement to insure, so as to have maintained the action at law. But the proceedings would have been more complicated and embarrassing than upon the policy. The party, therefore, had a right to resort to a court of equity to compel the delivery of the policy either before or after the happening of the loss ; and being properly in that court after the loss happened; it is according to the established course of proceeding, in order to avoid delay and expense to the. parties, to proceed and give such final relief as the circumstances of the case demand.

Such relief was given in the case of Motteux v. The London Assurance Company, 1 Atk. 545, and in Perkins v. The Washington Insurance Company, 4 Cow. 646. See also 1 Duer, 66 and 110, and 2 Phillips, 583.

As the only real question in the case is the one which , a court of equity must necessarily have to decide, in the exercise of its peculiar jurisdiction in enforcing a specific execution of the agreement, it would be an idle technicality for that court to turn the. party over to his remedy at law upon the policy. An'd, no doubt, it was a strong sense of this injustice that led -the court at an early day to establish the rule, that, having properly acquired jurisdiction' over the subject for a necessary purpose, it was the duty of the court to proceed and do final and complete justice between the parties, where it could as well be done in that court as-in proceedings at law.

IV. It is further objected, that, admitting the claim to be properly enforceable in equity, still the complainant is not entitled to the relief sought, on the ground that the bill contains no sufficient statement of the contract, or of the performance of the conditions, and also for want of a proper prayer.

We are of opinion that these several objections are not well founded. The contract as set forth we have already considered, and held complete and binding on .the company; and further, that the denial of having entered into the agreement, and refusal to issue the policy, also set forth, are sufficient ground upon which to infer .a waiver of the production of the preliminary proofs, as a condition of liability ; and if sufficient ground to infer a waiver, it was of course unnecessary to set forth these proofs in the bill. And as to the prayer, it is sufficient to say, that the prayer for general .reliéf which is here found will enable the court to make such a decree as the complainant may show himself entitled to, upon the facts set forth in the stating part of the bill.

The pleading is not very formal, nor very cautiously drawn, and, in the absence of the prayer for general relief, might have led to embarrassment in making the proper decree in the case. There is a specific prayer for a decree for the loss, but it would have been more formal and appropriate, regarding the ground of jurisdiction in these cases, to have added also a prayer for a specific performance of the agreement to insure.

But the particular relief permitted under a general. prayer, where the statement in the body of the bill is sufficient to entitle' -the party to it, meets the difficulty suggested, and well warrants' the decree proposed to be entered. (Story, Eq. PL, <§><§> 41, 42, and cases.)

Upon the whole, without pursuing the examination further, we are of opinion that the decree of the court below should be reversed,' and that the cause be remitted, with directions to the court to take such further proceedings therein as may be necessary to carry into effect the opinion of this court.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland,, and was argued by counsel. On consideration, whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to. the said Circuit Court, with directions to that court to take such proceedings therein as may be necessary to carry into effect the opinion of this court.

       See the Appendix.


author: Mr. Justice WAYNE

text:
    Thomas Townsend, Plaintiff in error, v. Robert Jemison, Jr.
    Where the cause of action accrued in the State of Mississippi, and suit was brought upon it in the State of Alabama, a pica of the statute of limitations of Mississippi was not a good plea; but the same was demurrable, and the court sustained the demuprer.
    The rule is, that the statute of limitations of the country in which the suit is brought may he pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the statute of lex loci contractus cannot.
    The obligations of a contract upon the parties to it, except in well-known cases, are to-be expounded by the lex loci contractus; but suits brought to enforce contracts, either in the State where they were made or in the courts of other States,'are subject to the remedies of the forum in which the suit is, including that of statutes of limitation.
    The cases of Leroy v. Crowninshield, 2 Mason, 351, and McElmoyle v. Cohen, 13 Peters, 312, examined and commented on.
    This case was brought up, by writ of error, from the District Court of-the United States for the Middle District of • Alabama.
    Townsend was a citizen of the State of Mississippi, and Jemison of Alabama.
    In September, 1844, Jemison brought a suit, in the District Court of the United States for the Middle District of Alabama, against Townsend, who was in Alabama.
    The nature of the suit is explained in the following short specification of claim, filed by the counsel for the plaintiff.
    “ This action is brought to recover damages for the nonperformance of an agreement made by the defendant with the plaintiff, that if the plaintiff would procure, take up, and obtain anote made by Robert Weir, A. F. Young, and the said defendant, and Henry Buchanan, for $ 4,000, dated Columbus, April 12, 1839, payable nine months after the 24th of April, 1839, to the Mississippi Union Bank, at their banking-house in Jackson, bearing ten per cent, interest after maturity, if not punctually paid, but upon which note’ the said A. F. Young was to pay the said bank $ 1,000; and would also procure, take up, and obtain a note, made by the said defendant and A. F. Young, Andrew Weir, and Henry Buchanan, dated Columbus, April 12, 1839, for $ 4,000, payable nine months after the 24th of April, 1839, to the Mississippi Union Bank, át its banking-house in Jackson, to bear ten per cent, interest after maturity, if not punctually paid, but upon which note A. F. Young was to pay $ 1,000; that he, the defendant, would take up, procure, and obtain a note, made by John B. Jones, Thomas Townsend (the said defendant), Eli Abbott; and Samuel D. Lauderdale, dated Columbus, Mississippi, May 24th, 1839, for $ 9,806.50, payable six months after date to the Commercial Bank of Columbus, .or order,, at their bank; which agreement the defendant wholly failed to perform, although the plaintiff,- upon his part, fully performed the said agreement. Other counts will be added in the declaration.
    “ Attest: Crabb & Cochran,

      Plaintiff’s Attorneys.”

    The declaration set forth the transaction.with. more particularity, and also contained the common money counts and an account, stated.
    To the first count the plaintiff in error pleaded in bar; — First, that the promise was unwritten, made in Mississippi, and to be performed there, and was made more than three years before this suit; and that, by the statute of limitations of Missisr sipp:, the right of action is barred upon such a promise after three_ years. Secondly, the same matter, with an averment that the cause of action accrued in Mississippi more than three years before this suit. To these-pleas there was a demurrer. To this first'count the plaintiff in error further pleaded, as to parcel thereof, non-assumpsit, and as to the residue, a former action brought and-judgment recovered by 'the defendant in error- against him. The .defendant in error joined issue on the parts of this plea respectively, to .the court and to the country.
    To the whole declaration the plaintiff in error pleaded nonassumpsit, on which issue was joined; and also that the causes of. action accrued more than three years before suit, averring himself to have been a citizen of Mississippi,, and that the promises were there made and there to be performed; and to this plea the defendant in error demurred.
    In this state of the pleadings, the cause came on for trial, on the 7th of December, 1846, when the following proceedings were had.
    “ This day came said parties, by their, attorneys, and the demurrer to the first three pleas of the said defendant, by him above pleaded, coming on to be heard, and having been fully argued by counsel, and understood by the court, it is adjudged - by the court that the said first three pleas by the defendant above pleaded, and the matters therein alleged, are insufficient in law to bar the said plaintiff from .having o. maintaining his said action against- said defendant; and the court doth accordingly sustain the said demurrer. And as to so much of the said fourth plea by the said.defendant, by him above pleaded, as alleged a former recovery of three thousand four hundred and fifty-one dollars and eighty-eight cents, in the District Court of the United States for the Northern District of Mississippi, on account of the undertaking of the said defendant ‘ to pay three thousand dollars, or any other part or parcel of the said note, made by the said John B. Jones, Thomas Townsend, Eli Abbott, and Samuel D. Lauderdale, in consideration that the said plaintiff would pay three thousand dollars, or any other part or parcel of the note made by Thomas Townsend, A. P. Young, Andrew Weir, and Henry Buchanan,’ and set out at large in said count, on which issue was joined to the court, the record therein referred to being seen and inspected by the court, and the same being fully considered, the court adjudged that there is such a record, as alleged in said plea, of a recovery on the promise of the said Thomas Townsend, to pay on the note of the said John B. Jones, Thomas Townsend, Eli Abbott, and Samuel D. Lauderdale, as mentioned in - said plea, the like ■amount that should be paid by plaintiff on the note of the said Thomas Townsend, A. F. Young, Andrew Weir, and Henry Buchanan. And as to the residue of said fourth plea, and the fifth plea, upon which issue was taken to the country, thereupon came a jury of good and lawful men, to wit, Amos Briggs, and eleven others, who, being impanelled, tried, and sworn the truth to say upon the issues joined, upon their oaths do say, they find the issues in favor of the plaintiff, and assess his damages at four thousand six hundred and forty-five dollar^. It is therefore considered by the court, that the plaintiff recover of said defendant said sum of four thousand six hundred and forty-five dollars, the damages by the jury assessed as aforesaid, in manner and form aforesaid, together with the costs in this behalf expended.”
    Townsend sued out a writ of error, and brought the case up to this court.
    It was argued by .Mr. Key, for the plaintiff in error, and Mr. Lawrence and Mr. Badger, for the defendant in error.

      Mr. Key.

    The questions now presented for consideration arise from the pleas of Townsend to the declaration.
    To the first three pleas the plaintiff below demurred; and it is submitted, that the court erred in sustaining this demurrer.
    1. The substance of these pleas is the bar of the statute of limitations of the State of Mississippi, and it is contended for the plaintiff in error that they were valid pleas. The general principle must be admitted as settled, that, in personal contracts, the . lex loci contractus governs- in all questions relating to the construction or validity of the contract, in whatever country or State the action may be brought. Laws of limitation, it has been generally decided, affect the remedy, and the lex fori, or the law of the place where the action is instituted, prevails. But the question now presented is, whether these pleas are not valid, the statute of Mississippi having completely run against, the plaintiff Jemison, the bar being perfected, and his remedy in that State extinguished.
    It is thought that this is an open question. The decisions of this court, touching the general question as to the effect of statutes of limitation, are to be found in the following cases: — Hawkins v. Barney, 5 Peters, 457; Bank of U. States v. Donnally, 8 Peters, 361; McElmoyle v. Cohen, 13 Peters, 312. The decisions in these cases will be found, upon examination, not to have settled the present question: But see Leroy v. Crowninshield, 2 Mason, 151; Bell v. Morrison, 1 Peters, 373; Goodman v. Munks, 8 Porter, (Ala.) 84; Davis v. Minor and Wife, 1 How. Miss. 184. It will be perceived by the two cases last cited, that the highest court of the State of Alabama has decided in favor of the validity of a plea of limitations of another State, when the bar has been perfected; and the High Court of Errors' of the State of Mississippi has affirmed the same principle. In Leroy v. Crowninshield, Judge Story-felt constrained, by the decisions of the courts of the States in which the parties respectively resided, to decide the question contrary to his own judgment; but the highest courts of the States in which the parties to this suit are respectively resident have decided in accordance with that judgment.
    2. Are not these pleas within the lex fori of Alabama ? It is true they are not pleas of any statute of limitations of that State, but they are framed in conformity with the decisions of the Supreme Court of the State, which declares that a plea of the statute of limitations of another State, if the bar of the statute has been pérfected, is a valid plea in the State of Alabama. Goodman v. Munks, before cited.
    The power of the Supreme Court of the State to decide and settle the law, as to what pleas should be good in the courts of that State, cannot be questioned. The court below should have been guided by this decision, and was bound to adopt it. A fixed and received construction by a State court of its statute laws, must furnish the rule of decision to the Federal courts, and it is immaterial whether the decisions of the State courts are grounded upon statutes of the States, or form a part of the unwritten law; .and such decisions are entitled to the same respect as those which are given oh the construction- of local statutes. Henderson and Wife v. Griffin, 5 Peters, 154; Jackson v. Chew, 12 Wheaton, 153; Leroy v. Crowninshield, 2 Mason, 151.
    The decision of a question of local- law by the highest tribunal of a State is considered final by this court. Rowan et al. v. Runnels, 5 Howard, 134. It is submitted, therefore, that the .first three pleas are good, according to the settled law of Alabama.
    3. The plaintiff in error contends, that the fourth plea should have been adjudged a' bar to the whole action in the court below. The plea states, that, upon the identical cause of action, a suit had been instituted by the plaintiff below in a court, of competent jurisdiction in the State of Mississippi. A judgment was obtained in favor of said plaintiff, and was subsequently paid and satisfied.
    A judgment-obtained in one State is conclusive in every other State, and extinguishes the original ground of action. Green v. Sarmiento, Pet. C. C. 74.
    It cannot be contended that the judgment referred to applied to a part only of the said Jeinison’s claim. The record shows, that’the whole claim'was included in the suit in Mississippi. But, admitting the suit to have been brought for a portion only, still the same principle applies; the cause of action was founded upon one promise. A plaintiff cannot divide one entire cause of action, so. as to maintain two suits upon it, without the defendant’s consent; if he attempt so to do, a recovery in the first suit, though for less than his whole demand, is a bar to the second. Ingraham v. Hall, 11 Serg. & Rawle, 78; Crips v. Talvande, 4 McCord, 20; Smith v. Jones, 15 Johns. 229; Mandeville v. Welch, 5 Wheaton, 277; Tiernan v. Jackson, 5 Pet. 580; Shankland v. Corp. of Washington, Ibid. 390.
    If it be contended that the judgment obtained in Mississippi 'was pleaded in the said fourth plea only to a portion of the declaration, and that it was not pleaded in bar of the whole action, and that the point was not presented to the court below, and that this court will- not reverse the judgment upon a point which was not presented for the consideration of the court, I refer to Stephen on Pleading, pp. 117, 118, 119, 120, 144, 145, 146; Slacum v. Pomery, 6 Cranch, 221; Cohens v. State of Virginia, 6 Wheaton, 409, 410; United States v. Carlton, 1 Gall. 400.
    The counsel for the defendant in error contended, —
    First, that the three pleas of the statute of limitations were bad in law, and therefore were properly overruled by the court. The limitation of actions by statute', affecting only the remedy and not the merits, furnishes a rule of decision only in the forum of that country which makes the statute, and not touching the merits, nor being any part' of the contract, cannot be extended to the court's of another country. Williams v. Jones, 13 East, 439; McElmoyle v. Cohen, 13 Pet. 312; Story’s Confl. of Laws, §§ 576 to 582.
    The statute of Mississippi is merely a statute of limitations, affects the remedy or right of action, only, and does not extingiiish the debt, the claim or title ipso facto, and make it a nullity.' This appears both from the plea and from the statute itself. Miss. Code, 825, 828.
    Secondly. If in any case, the statute of. Mississippi could be used to. affect the action in Alabama, it must be where the party sued had always been, from the time the cause- of action accrued, until the bar became complete, within the jurisdiction, and liable to the process, , of the courts of Mississippi. But the pleas here do not show" this, the averment being, “ that, on the 1st of January, 1839, he was, and from thence hitherto hath been, and still is, a resident.and citizen of the State of Missis- ' sippi, and not' elsewhere.” But residence and actual presence are not in law identical. Story’s Confl. of Laws, <§><§. 46, 47.
    Absence from a State does not implyloss either of citizen- ' ship or residence ; whether either is lost depends upon the intent of the party, and other matters.' If the absence be temporary, and with an intent to return, no loss of citizenship or residence fellows. A judge of this court while in Washington during the term, a gentleman visiting a watering-place in another State during the summer, a merchant visiting New York to purchase goods, a member of Congress attending a session of the Senate or House, are all and each, during the whole time of such temporary absence, citizens, and in law residents, of the'States in which they have their permanent domicil.
    It was incumbent upon the plaintiff in error, therefore, to show by precise and accurate averment, not that he was a citizen and resident, but .that he was'not in fact absent from his residence for three years from the time the "cause of action accrued, and therefore for the whole time amenable to process under the law of Mississippi.
    If, then, ‘consistently with' the averment in- the plea, he might have been absent for a day, the plea is bad; but here, consistently with his averment, he might have been absent for the whole three years.
    •Thirdly. That upon the record nothing' was submitted t.o the jury but what, according to- the state of the pleading, ought to have been submitted, and, according to strict technical rules, must have been submitted; that it does not appear, and will not be intended, that any damages were given on account of matters out of the issues, or which should have been excluded from consideration by reason of the judgment given by the court upon the plea of former’ recovery, or the state of the pleadings.
   Mr. Justice WAYNE

delivered the opinion of the court.

This suit has been brought here from the District Court of the United States for the, Middle District of Alabama. The defendant in the court below, appellant here, besides other pleas, pleaded that the cause of action accrued in Mississippi more than three years before the suit was brought; and that the Mississippi statute of limitations barred a recovery in the District Court of Alabama. The plaintiff demurred to the plea. ■ The court sustained the demurrer.

We do not think it necessáry to do more than to decide this point in the case.

The rule in the courts of the United States, in respect to pleas of the statutes of limitation has always been, that they strictly affect the remedy, and not the-merits. .In the case of McElmoyle v. Cohen, 13 Peters, 312, this point was raised, and so decided. All of the judges .were present and assented. The fullest examination was then made of all the authorities upon the subject, in connection with the diversities-of opinion among jurists about it, and of all those considerations which have induced legislatures to interfere and place a limitation upon the bringing of actions.

We thought then, and still think, that it has become a for-mulary in' international jurisprudence, that all suits must be brought within the period prescribed by the local- law of the country where the suit is brought, — the lex fori; otherwise the suit would be barred, unless the plaintiff can bring himself within one of the- exceptions of the statute, if that is pleaded by the defendant. This rule' is' as fully recognized in foreign jurisprudence as it is in the common law. We then referred to authorities in the common law, and to a summary of them in foreign jurisprudence. Burge’s Com.' on Col. and For. Laws. They were subsequently cited, with others’ besides, in the second edition of the Conflict of Laws, 433. Among them will be found the case of Leroy v. Crowninshiéld, 2 Mason, 151, so much relied upon by the counsel in this case.

Neither the learned' examination made in that case of the reasoning of jurists, nor the final conclusion of the judge, in opposition to his own inclinations, escaped our attention. . Indeed, he was here to review them, with those of us now in the court who had the happiness and benefit of being associated with him. He did so with the same sense of judicial obligation for the maxim, Stare decisis, et non quieta mover e, which marked his official career. His language in the case in Mason fully illustrates it: — “ But I do not sit here to consider what in theory ought to be the true doctrines of the law, following them out upon principles of philosophy and juridical reasoning. My humbler and safer duty is to administei the law as I find it, and to follow in the path of authority, where it is clearly defined, even though that path may have been explored by guides "in whose judgment the most implicit confidence might not have been originally reposed.” Then follows this declaration: — “ It does appear to me that the question now before the court has been settled, so far as it could be, by authorities which the court is-bound to respect.” The error, if any has been committed, is too strongly engrafted into the law to be removed without the interposition of some superior authority. Then, in support of this declaration, he cites Huberus, Voet, Pothier, and Lord Karnes, and adjudications from English and American courts, to show that, whatever may have been the differences of opinion among jurists, the uniform administration of the law has been,.that the lex loci contractus expounds the obligations Of contracts, and that statutes of limitation prescribing a time after which a plaintiff shall not recover, unless he can bring himself within its exceptions, appertain ad tempus et modwm actionis instituendce and not ad valorem contractus. Williams v. Jones, 13 East, 439; Nash v. Tupper, 1 Caines, 402; Ruggles v. Keeler, 3 Johns. 263; Pearsall v. Dwight, 2 Mass. 84; Decouche v. Savetier, 3 Johns. Ch. 190, 218; McCluny v. Silliman, 3 Peters, 276; Hawkins v. Barney, 5 Peters, 457; Bank of the United States v. Donnally, 8 Peters, 361; McElmoyle v. Cohen, 13 Peters, 312.

There is nothing in Shelby v. Guy, 11 Wheaton, 361, in conflict with what this court decided in the four last-mentioned cases. Its action upon the point has been uniform and decisive. In cases before and since decided in England, it will be found there has- been no fluctuation in the rule in the courts there. The rule is, that the statute of limitations of the country in which the suit is brought may be pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the limitation of the lex loci contractus cannot be. 2 Bingham, New Cases, 202, 211; Don v. Lippmann, 5 Clark & Fin. 1, 16, 17. It has become, as' we have already said, a fixed rule of the jus gentium privatum, unalterable, in our opinion, either in England or in the States of the United States, except by legislative enactment.

We will not enter at large into the learning and philosophy of the question. We remember the caution given by Lord Stair in the supplement to his Institutes (p. 852), about citing as authorities the works and publications of foreign jurists. It is appropriate to the occasion, having been written to correct a mistake of Lord Tenterden, to whom no praise could be given which would not be deserved by his equally distinguished contemporary, Judge Story. Lord Stair says, — “ There is in Abbott's Law.of Shipping (5th edition, p. 365) a singular mistake;, arid, considering the justly .emirient character of the learned author for extensive, sound, and practical knowledge of the English law, one which ought to' operate as a lesson on this side of the Tweed, as well as on the other, to be a little cautions in citing the works and publications of foreign .jurists, since, to comprehend their bearings, such a knowledge of the foreign law as is scarcely attainable is absolutely requisite. It is magnificent to array authorities, but somewhat humiliating to be detected in errors concerning them; — yet how can errors be avoided in such a case, when every day’s experience warns us of the prodigious study necessary to the attainment of proficiency in our own law ? My object in adverting to the mistake in the work referred to is, not to depreciate the author, for whom I entertain' unfeigned respect, but to show that, since even so justly distinguished a lawyer fails when he travels beyond the limits of his own code, the attempt must be infinitely hazardous with others.”

We will now venture to suggest the causes which misled the learned judge in Leroy v. Crowninshield into a conclusion, that, if the question- before him had been entirely new, his,inclination would strongly lead him to declare, that wher.e all remedies are barred or discharged by the lex loci contractus, and have operated upon the case, then the bar may be pleaded in a foreign tribunal, to repel any suit brought to enforce the debt.

. We .remark, first, that only a few of the civilians who have •written upon the point differ from the rule, that statutes of limitation relate to the remedy and not to the contract. .If there is any case, either in our own or the English courts, in which the point is more discussed than it is in Leroy v. Crowninshield, we are not acquainted with it. In every case but one, either in England or in the United States, in which the point has since been made, that case has been mentioned, .and it has carried some of our own judges to a result which Judge Story himself did not venture to support.

We do not find him- pressing his argument- in Leroy v. Crowninshield in the Conflict of Laws, in which it might have been appropriately done, if his doubts, for so he calls them, had not been removed. Twenty years had then passed between them. In all that time, when so much had been a,dded to his learning, really great before, that by common consent he was estimated in jurisprudence par summis, we find him, in the Conflict, of Laws, stating the law upon the point, in opposition to his former doubts, not in deference to authority alone, .but from declared conviction.

The point had been examined by him in Leroy v. Crowninshield. without any consideration of other admitted maxims of international jurisprudence, having a direct bearing upon the subject. Among others, that the obligation of every law is confined to the State in which it is established, that it cap only attach upon those who are its subjects, and upon others who are within the territorial jurisdiction of the State; that debtors can only be sued in the courts of the jurisdiction where they are; that all courts must judge in respect to remedies from their own laws, except when conventionally, or from the decisions of courts, a comity has beep established between States to enforce in the courts of each a particular law or principle. When there is no positive rule, affirming, denying, or restraining the operation of foreign laws, courts establish a comity for such as are not repugnant to the policy or in-conflict with the laws of the State from,which they derive their organization. We are not aware, except as it has been Drought to our notice by two cases cited in the argument of this cause, that it has ever been done, either to give or to take away remedies from suitors, when there is a law of the State where the suit is brought which regulates remedies. But for the toundation of comity, the manner' of its exercise, and the extent to which courts can allowably carry it, we refer to the case of the Bank of Augusta v. Earle, 13 Peters, 519, 589; Conflict of Laws, Comity.

From what has just been said, it must be seen, when it is claimed that statutes of limitation operate to extinguish a contract, and for that reason the statute of the State in which the contract was made may be pleaded in a foreign court, that it is a point riot standing alone, disconnected from other received maxims of international jurisprudence. And it may well be asked, before it is determined otherwise, whether' contracts by force of the different statutes, of limitation in States are not exceptions from the general rule of the lex loci contractas. There are such exceptions for dissolving and discharging contracts out of the jurisdiction in which they were made. The limitations of remedies, and the forms and modes of suit, make such an exception. Confl. of Laws, 271, and 524 to 527. We may then infer that the doubts expressed in Leroy v. Crowninshield would have been withheld, if the point had been considered in the connection we have mentioned.

We have found, too, that several of the civilians who wrote upon the question did so without having kept in mind the difference between the positive and negative prescription of the civil law. In doing so, some of them — not regarding the latter in its more extended signification as including all those bars 'or exceptions of law or of fact which may be opposed to the prosecution of a claim, as well out of the jurisdiction in which a contract was made as in it — were led to the conclusion, that the prescription was a part of the contract, and not the denial of a remedy for its enforcement. It may be as well here to state the difference between the two prescriptions in the civil law. Positive, or the Roman usucaptio, is the acquisition iff property, real or personal, immovable or movable, by the continued possession of the acquirer for such a time as is described by the law to be sufficient. Erskine’s Inst.' 556. “ Adjectio dominii per continuationem possessionis temporis legi dejiniti." Dig. 3.

Negative prescription is the loss or 'forfeiture of a right, by the proprietor’s neglecting to exercise or prosecute it during the Whole period which the law hath declared to be sufficient to infer the" loss of it. It includes the former, and applies also to all those demands which are the subject of personal actions. Erskine’s Inst. 560, and 3 Burge, 26.

. Most of the civilians, however, did not lose sight of the differences between these prescriptions, and if their reasons for doing so had been taken as a guide, instead, of some expressions used by them, in respect to what may be presumed as to the extinction or payment of a claim, while the plea in bar is pending, we do not think that any doubt would have been expressed concerning the correctness of their other conclusion, that statutes of limitation in suits upon contracts only relate to the remedy. But that was not done, and, from some expressions of Pothier and Lord Karnes, it was said, If the statute of limitations does create, proprio vigore, a presumption of the extinction or payment of the debt, which all nations ought to regard, it is not easy to see why the presumption of such payment, thus arising from the lex loci contractus, should not be as conclusive in every other place as in the place-of the contract.” And that was said in Leroy v. Crowninshield, in opposition to the declaration of both of those writers, that in any other place than that of the contract such a presumption could not be made to defeat a law providing for proceedings upon suits. Here, turning aside for an instant from our main purpose, we, find the beginning or source of those constructions of the English statutes of limitation which almost made therh useless for the accomplishment,'of their end. Within a few,years, the abuses of such constructions have been much corrected, and we are now, in the English and American courts, nearer to the legislative intent of such enactments.

But neither Pothier nor Lord Kames meant to be understood, that the theory of statutes of limitation purported to afford positive presumptions of payment and extinction of contracts, according to the laws of the place where' they are made. The extract which was made from Pothier shows his meaning is, that, when the statute of limitations has been , pleaded by a defendant, the presumption is in his favor that he has extinguished and discharged his contract, until the plaintiff overcomes it by proof that he is within one of those exceptions of the statute which takes, it out of the time after which he cannot bring a suit to enforce judicially the obligation of the defendant. The extract from Lord Kames only shows what may be done in Scotland when a process has been brought for payment of an English'debt, after the English prescription has taken place.- The English statute cpnnot be pleaded in Scotland'in-such a case, but, according to the law of that forum, it may be pleaded that the debt is presumed to have been paid. And it makes an issue, in which the plaintiff in the suit rñay show that such a presumption does not apply to his demand; and that without any regard to the prescription of time in the English statute of limitation. It is upon this presumption of payment that the conclusion in -Leroy -v. Crowninshield was reached, and as it is now universally admitted that it is not a correct theory for the administration of statutes of limitation, we may- say it was in fact because that theory was assumed in that case that doubts in it were expressed, contrary to the judgement which was given, in submission to what was admitted to be the law; of the case. What, we have said may serve a good purpose. It is pertinent to the point raised by the pleading in the case before us, and in our judgment there is no ej:ror in the District Court’s haying sustained the demurrer.

Before concluding, we will remark that nothing has been said in this case at all in conflict with what was said by this court- in Shelby v. Guy, 11 Wheaton, 361. The distinctions made by us here between statutes giving a right to property from possession for a certain time, and such as only take away remedies for the recovery of property after a certain time has passed, confirm it. In Shelby v. Guy this court declared that, as .by the laws of Yirginia five years’ bona fide possession of a slave constitutes a good title upon which the possessor may recover in detinue, such a title may be set up by the vendee of such possessor in the courts of Tennessee as a defence to a suit brought by a third party in those courts. The same had been previously ruled in this court in Brent v. Chapman, 5 Cranch, 358; and it is the rule in all cases where it is declared by statute that all rights to debts due more than a prescribed term of years shall be dedmed extinguished, ánd that all titles to real and personal property not pressed within the prescribed time shall give ownership to an adverse possessor. Such a law, though one of limitation, goes directly to the extinguishment of the debt, claim", or right, and is not a bar to the remedy. Lincoln v. Battelle, 6 Wend. 475. Confl. of Laws, 582.

In Lincoln v. Battelle, 6 Wend. 475, the same doctrine was held. It is stated in the Conflict of Law's, '58£, to be a settled point. The courts of Louisiana act upon it. We could cite other instances in which it has been announced in Américan courts of the last resort. In the cases of De la Yega v. Vianna, 1 Barn. & Adol. 284, and the British Linen Company v. Drummond, 10 Barn. & Cres. 903, it is said, that, if a French bill of exchange is sued in England, it must be. sued on.according to the laws of England, and there the English statute of limitations would form a bar to the demand if the bill had been due for more than six years. In the case of Don v. Lippmann, 5 Clark & Fin. 1, it was admitted by the very learned counsel who argued that case for the defendants in error, that, though the law for expounding a contract was the .law of the place in which it was made, the remedy for enforcing it must be the law of the place in which it is sued. In that case will be found, in the argument of Lord Brougham before the House of Lords, his declaration of the same doctrine, sustained by véry cogent reasoning, drawn from urhat is the actual intent of the parties to a-contract when it is.made, and from the inconveniences of pursuing a different course. In Beckford and others v. Wade, 17 Vesey, 87, Sir William Grant, acknowledging the rule, makes the distinction between statutes merely barring the legal remedy and such as prohibit a suit from being brought after a specified time. It was a case arising under the possessory law of Jamaica, which converts a possession for seven years under a deed, will, or other conveyance, into a positive. absolute title, against all the world, — without exceptions in favor of any one or any right, however a party may have been situated during that time, or whatever his previous right of property may have been; There is a statute of the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. In Tennessee there is an act in some respects similar to the possessory law of Jamaica; it give's an indefeasible title in fee simple to lands of which a person has had possession for seven years, excepting only from its operation infants, feme coverts, non compotes mentis, persons imprisoned or beyond-the limits of the United States and the Territories thereof, and the heirs of the excepted, provided.they bring actions within three years after they have a right to sue. Act of November 16, 1817, ch. 28, §§ 1, 2. So in North Carolina, there is a provision in the act of 1715, ch. 17, §.2, with the same exceptions as in the act of Tennessee, the latter being probably copied substantially from the former. Thirty years’ possession in Louisiana prescribes land, though possessed without title and mala fide.

We have mentioned those .acts in our own States, only for the purpose of showing the difference between statutes giving title from possession, and such as only limit the bringing of suits. It not unfrequently happens in legislation, that such sections are found in statutes for the limitation of actions. It is in fact because they have been .overlooked, that the distinction between them has not been recognized as much as it ought to have been in the discussion of the point, whether a certain time assigned by a statute, within which an action must be brought, is a part of the contract, or solely the remedy. The rule in such a case is, that the obligations of the contract upon the parties to it, except in well-known cases, are to.be expounded by the lex loci contractus. • Suits brought to enforce contracts, either in the State where they were made, or in the courts of other States, are subject to the remedies of the forum in which the suit is, including that of statutes of limitation.

Judgment affirmed.

Order.

. This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs, and damages at the rate of six per centum per annum.