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HAMILTON MURRAY, USE, &C., PLAINTIFF, v. JOHN A. GIBSON.

December 1, 1853

HAMILTON MURRAY, USE, &C., PLAINTIFF,
v.
JOHN A. GIBSON.



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. The case is fully stated in the opinion of the court. It was argued by Mr. May, for the plaintiff, who made the following points.

The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.

First. That the Federal courts will be governed by the State law of limitations in the forum where the suit was instituted, that is, by the law of Mississippi in this case. See Green v. Neal, 6 Peters, 291; Harpending v. The Dutch Church, 16 Peters, 455; Porterfield v. Clark, 2 Howard, 76.

Second. That in construing the statutes of limitations of Mississippi, this court will conform to, and adopt the exposition thereof made by the Supreme Court of Mississippi, and in the event of contradictory or inconsistent decisions by that court, the last decision will be preferred and followed, even though it may be opposed to a former decision of this court. Elmendorf v. Taylor, 10 Wheat. 152; Bank of Hamilton v. Dudley, 2 Peters, 492; United States v. Morrison, 4 Peters, 124; Green v. Neal, 6 Peters, 291.

Third. That the plea is defective under the act of limitations of Mississippi, passed March 5th, 1846. She Hutch. Code, 833.

Because that statute is inapplicable to an action on a judgment rendered, as this was anterior to its passage, and it was so adjudged by the Supreme Court of Mississippi. See Boyd, &c. v. Barrenger, &c., 1 Cushman's Mississippi Reports, 269.

Fourth. That said plea is equally defective under the 14th sect. act of Mississippi of 1844. See the act in Hutch. Code, 832.

Because the plea does not aver that two years or more had expired from the passage of said last act, before the institution of this suit, as the said act requires, and as the Supreme Court of Mississippi also ruled it should have done, in the same case of Boyd, &c. v. Barrenger, 1 Cushman's Reports, 269.

The question adjourned for our consideration on this record, cannot be more clearly or succinctly disclosed than it has been by the certified statement of the pleadings upon which the judges of the Circuit Court were divided in opinion. That statement is in the following words:

May Term, 1851.

'This day came on this cause for trial before Judges Peter V. Daniel and Samuel J. Gholson, presiding.

'The declaration is an action of debt, brought on the 16th May, 1850, and founded on a judgment rendered on the 29th day of November, 1844, in the district court of the parish of Madison, in the ninth judicial district of the State of Louisiana, against the defendant, and in favor of the plaintiff. To this action the defendant pleaded a number or pleas, of which the 7th plea is in the words and figures following: 'And for further plea in this behalf the said defendant says, that the said defendant was, at the time of the commencement of the suit in the District Court of the parish of Madison, in the State of Louisiana, and also at the time of the rendition of the judgment in the plaintiff's declaration mentioned, and ever since has been, and now is, a citizen of the State of Mississippi, residing in the county of Hinds, and that more than three years expired, and were complete and ended, from and after the time of the rendition of such judgment, without the limits of this State, to wit, in the parish of Madison, in the State of Louisiana, before the institution of this suit, and this he is ready to verify; wherefore, &c.'

'JOHNSON, MAYS, & CLIFFTON, For defendant.'

'To said plea the plaintiff filed a general demurrer.

'Among other matters to be tried, the question occurred before the court whether the demurrer of the plaintiff to the defendant's plea above copied ought to be sustained. And after argument by counsel, the opinions of the two judges aforesaid are opposed and disagree upon the question aforesaid; one of said judges being of opinion that said plea is a good and sufficient bar to the plaintiff's action, and that said demurrer should be overruled; and the other of said judges being of ...


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