THIS case came before the court on a certificate of division in opinion of the judges of the circuit court of the United States for the district of West Tennessee.
In the circuit court of the United States for the district of West Tennessee, Thomas Kirkman, Junior, a citizen of Alabama, instituted, in April 1823, an action of debt, against John W. Hamilton and Thomas Donoho, citizens of Tennessee, upon a promissory note drawn by the defendants under the firm of Hamilton and Donoho in West Tennessee, on the 22d of September 1818, for the sum of three thousand dollars, payable fifteen months after date to Thomas Ramsey and Company or order, and Thomas Ramsey and Company having become citizens of Alabama, and the note being unpaid, indorsed the same to the plaintiff, Thomas Kirkman, Junior.
To this declaration, the defendants pleaded: First, the statute of limitations of Tennessee, alleging that the cause of action did not accrue within three years. Second, that at the time the note was given they were citizens and inhabitants of Smith county in the state of Tennessee, of which state the plaintiff was then a citizen, and in which state the note was given.
To the plea of the statute of limitations, and to the second plea, the plaintiff demurred, and assigned as causes of demurrer, 1. That the plea does not state that this is an action of debt for arrearages of rent. 2. The declaration is not in debt for arrearages of rent. 3. The cause of action sued upon is not arrearages of rent. 4. The second plea is uncertain, unsound, and insufficient.
Upon the argument of the demurrer in this cause, as applicable to the plea of the statute of limitations to the second count in the plaintiff's declaration, the court were divided in opinion upon the following questions: Whether the plea of the statute of limitations is a bar to the recovery of the plaintiff on the second count in the declaration; and whether an action of debt can be supported on the cause of action set forth in said second count: whether the averment of the citizenship of Thomas Ramsey & Co., the payers of the note in the said second count, is sufficient to sustain the jurisdiction of this court under the provisions of the eleventh section of the judiciary act of 1789. Which certificate of division of opinion was ordered to be certified to the Supreme Court of the United States, according to law.
The case was argued by Mr Webster for the plaintiff. No counsel appeared on the part of the defendant. Mr Webster also presented to the court a written argument from Thomas Washington, the counsel for the plaintiff in the circuit court.
It was contended, that the plea of the statute of limitations of Tennessee does not apply to the action of debt at all, unless to debt for arrearages of rent, which is not the nature of this action. Act of 1715 of North Carolina, chapter 27, section 5, Scott's Revisal, 15. This act applies exclusively to the form of the action. Besides; acts of limitation bar the remedy and not the right.
The act of 1715, chapter 31, section 7, does not apply, even if, by that act, the act of James is in force in Tennessee; because six years had not elapsed before the bringing of this suit. It has not yet been decided by the Supreme Court of Tennessee whether the act of James is in force in Tennessee or not; but the question is depending at this time.
The defendants, in support of that plea, rely upon the act of 1786, chapter 4, section 5. In answer to that, the plaintiff says, that by the act of 1786, the limitation is only to apply in the same manner, in a suit founded upon an indorsed note under seal, as it would apply in a suit upon a promissory note indorsed; and that the action against the maker of the former, would be debt, and that against the maker of the latter, might be debt. Raburg v. Peyton, 2 Wheat. 385. So that the limitation intended by the act of 1786 never could apply, unless in a suit against an indorser of a sealed note. See act of 1762, chapter 9, section 2; see also act of 1789, chapter 57, section 3. There has been no decision of the Supreme Court upon the applicability of the act of 1786, to an action of debt against the maker of a sealed note, nor is the question depending.
As to the averment of the citizenship of the original parties to the note, it was contended, that the payees of the note, Thomas Ramsey and Co., although citizens of Tennessee when the note was made, yet if they had become citizens of Alabama, and had not assigned it, they could have maintained a suit in their own names in the federal court; and that, consequently, if they had the right, they could communicate it; or, at least, that their assignees would note be precluded by any disability of their assignors.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
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