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U.S. Supreme Court

Chemung Canal Bank v. Lowery, 93 U.S. 72 (1876)

Chemung Canal Bank v. Lowery

93 U.S. 72


1. The English rule, that the statute of limitations cannot be set up by demurrer in actions at law does not prevail in the courts of the United States sitting in Wisconsin.

2. The distinction between actions at law and suits in equity has been abolished by the code of that state, and the objection that suit was not brought within the time limited therefor, if the lapse of time appears in the complaint with out any statement to rebut its effect, may be made by way of demurrer, if the point is thereby specially taken. If the plaintiff relies on a subsequent promise, or on a payment to revive the cause of action, he must set it up in his original complaint, or ask leave to amend.

3. A provision to the effect that when the defendant is out of the state, the statute of limitations shall not run against the plaintiff, if the latter resides in the state, but shall if he resides out of the state, is not repugnant to the second section of the fourth article of the Constitution of the United States, which declares that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." chanroblesvirtualawlibrary

Page 93 U. S. 73

It appears by the complaint in this cause that the plaintiff recovered a judgment against the defendants in New York on the fourteenth day of June, 1862, for upwards of $15,000 -- the plaintiff being a corporation of New York and the defendants all having appeared in the suit. The present suit was brought on that judgment, but only one of the defendants was served with process, the others residing out of the jurisdiction of the court. The complaint states that the defendant, who was served with process, was when served, and still is, a citizen and resident of Wisconsin, but that he did not come into the state and was not a resident thereof until the year 1864. This action was commenced on the 24th of January, 1873 -- a little more than ten years after the recovery of the judgment in New York, and less than ten years after the defendant, who was served, came into the state. The plaintiff demands judgment against the defendant now before the court.

The defendant filed the following demurrer to the complaint, to-wit:

"The defendant, Goodwin Lowery, demurs to the plaintiff's complaint in this action for that it appears upon the face of the same that the plaintiff's claim or demand is barred by the statute of limitations in that it appears that the supposed cause or causes of action did not, nor did either of them, accrue to the said plaintiff at any time within six years, nor at any time within ten years next before the commencement of this action, and for that the said complaint does not state facts sufficient to constitute a cause of action."

Upon this demurrer, the court gave judgment for the defendant. To reverse this judgment the present writ of error was brought. chanroblesvirtualawlibrary

Page 93 U. S. 74

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