Hays v. Cage

• Decision Date: 31 December 1847
• Citation: 2 Tex. 501
• Parties: PATRICK H. HAYS v. EDWARD CAGE, USE, ETC.
• Court: Texas Supreme Court

2 Tex. 501

PATRICK H. HAYS

v.EDWARD CAGE, USE, ETC.

Supreme Court of Texas.

December Term, 1847.

Writ of Error from Robertson County.

It is not error to permit security for costs to be given at any time before a case is actually dismissed for want of the security, under a rule requiring it.

The reinstatement of a cause, after it has been dismissed for the want of prosecution, is a matter within the discretion of the court below which this court will not revise.

An emigrant to Texas cannot defend himself, under the provisions of the 13th section of our statute of limitations of 1841, by the plea of the statute of limitations of the country from whence he emigrated and in which the claim sued upon originated, unless it be shown that an action upon the claim “was barred” by the statute of that country previous to his emigration.

The principle that when a statute of limitations has commenced to run it will continue to run, notwithstanding intervening impediments, is only applicable when invoked in the country where the statute exists. It has no force when urged in the courts of a foreign country where the statute itself has not the authority of law.

A foreign judgment, not satisfied, constitutes no bar to a suit brought upon the original cause of action or evidence of indebtedness.

The possession of a note or bill of exchange by the payee is evidence of ownership, although the same may appear to have been indorsed by him in blank by writing his name across the back of it. [ Ante, 397.]

A party is not bound by an admission which operates to his prejudice, if it were made under the authority of a judicial decision which has since been overruled.

The defendant in error sued the plaintiff in error in 1844 on a promissory note made at Manchester, in the state of Mississippi, for the payment of several thousand dollars due on the 1st day of January, 1838.

The defendant pleaded the statute of limitations of the state of Mississippi of six years, and a former recovery in that state upon the same cause of action.

He also pleaded the limitation prescribed by the 1st section of the act of limitations of this state. 5 Statute, 1841, p. 163.

To the plea of the statute of limitations of the state of Mississippi, the plaintiff replied that the defendant emigrated from that state before the right of action had become barred by the laws thereof.

To this replication the defendant excepted, but his exception was overruled by the court.

To the plea of a former recovery the plaintiff excepted, and his exceptions were sustained.

It appears from the record that the plaintiff was ruled to give security for costs, but the minutes of that term do not show who was the security given.

At a subsequent term a motion was made to strike the case from the docket for that cause, but the motion was refused and the security was permitted to be then given.

It further appears that the case was dismissed for the want of prosecution at the spring term of 1847, and subsequently at the same term reinstated on the motion of the plaintiff; but it does not appear for what cause.

From the statement of facts and a bill of exceptions in the record, it appears that when the note sued on was offered in evidence, it appeared to have been indorsed in blank by having the name of the payee written across it, which, however, had been subsequently stricken out. The defendant's counsel asked the judge to charge the jury, that “if it appears on the back of the note sued on that the note was or has been transferred by payee, the plaintiff in this case, and the jury believe that to be the fact, the plaintiff had no right to bring the suit; and in that case they would be bound to find for the defendant, unless the plaintiff produced evidence to show that the said note and the interest thereon had been transferred to said plaintiff.” But the court refused the instruction, and at the instance of the plaintiff instructed the jury that “the possession of the note sued on by the original payee, with his name in blank on the back of the note stricken out, is prima facie evidence of his ownership and right to sue.”

The defendant removed from Mississippi to Texas in 1840.

In his statement of the facts the judge says that the defendant “admitted that the statute of limitations of four years of this state did not bar the plaintiff's right to recover.”

There was a verdict and judgment for the plaintiff, and the defendant prosecuted this writ of error.

Taylor, for plaintiff in error.

Gillespie, for defendant in error.

Mr. Justice WHEELER, after stating the facts, delivered the opinion of the court, Mr. Justice LIPSCOMB not sitting.

For the plaintiff in error it is insisted that the court erred:

1st. In overruling the defendant's motion to strike the case from the docket for the want of a compliance with the rule requiring security for costs.

2d. In reinstating the cause after it had been dismissed for the want of prosecution “without any legal ground shown” therefor.

3d. In overruling the defendant's exception to the plaintiff's replication to the defendant's plea of the act of limitations of the state of Mississippi.

4th. In sustaining the plaintiff's exceptions to the defendant's plea of a former recovery by the plaintiff below against the defendant in the state of Mississippi. And 5th. In refusing the instructions to the jury asked by the defendant and in giving those asked by the plaintiff.

1. The first alleged error was in effect the subject of consideration at the last term of this court in the cases of Houston v. Roberts, and Cook v. Beasley;¹ in the latter of which we expressed the opinion that the security ought not to be refused if proffered at any time before the actual dismissal of the cause, and we see no reason to be dissatisfied with the opinion then expressed. But in the case before us there seems to have been a compliance with the rule at the term when it was made, but the clerk having omitted to enter the fact properly of record, the court permitted the defect to be supplied and the security to be again given at the next succeeding term, and in this we are of opinion there was no error.

2. The second ground assigned for the reversal of the judgment assumes that after the dismissal of the cause for the want of prosecution, it was reinstated “without any legal ground shown” therefor. It does not so appear from the record. That, indeed, is silent as to the grounds upon which the case was reinstated, but in the absence of anything appearing to the contrary, we must presume that the court below acted rightly and upon reasons legal and sufficient. If the reason was, as suggested by the motion to reinstate, that the case had been called up for dismissal out of its regular order on the docket, that certainly was a sufficient reason for reinstating it. Besides it was a matter within the discretion of the court below, which this court will not revise. In one of the cases already referred to, Houston v. Roberts, this court said: “The court in the exercise of its discretion may reinstate a case after it has been stricken from the docket, and in the exercise of that discretion this court will not control it, unless a strong case be shown of the improper exercise of that discretion.” That is not the case before us.

3. The third alleged error is predicated solely upon the 13th section of our act of limitations of 1841, which provides that “no action shall be brought against any emigrant of the republic to recover a claim which was barred by the law of limitations of that country or state from which he emigrated,” etc. 5 Statute, 166, sec. 13.

In the absence of this provision, the law of limitation or prescription of a foreign country could not of itself be pleaded in bar here, though to an action upon a claim which had been barred by such foreign law prior to the emigration of the party against whom the claim existed, upon the principle that the time of limitations of actions is governed by the lex fori, 2 Kent's Com. 462, 463; 6 Wend. 475;17 Mass. 55, unless in those cases where the laws of limitation or prescription of the foreign country do not only extinguish the right of action, but the claim of title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period. Story's Conflict of Laws, sec. 582.

“The authorities,” said Shaw, C. J., in Bulger v. Roche, “both from the civil and common law concur in fixing the rule that the nature, validity and construction of contracts is to be determined by the law of the place where the contract is made, and that all remedies for enforcing such contracts are regulated by the law of the place where such remedies are pursued.” 11 Pick. 36;8 Pet. 361. “In regard to statutes of limitation or prescription of suits,” says Mr. Justice Story, “there is no doubt that they are strictly questions affecting the remedy and not questions upon the merits.” Conflict of Laws, sec. 576. They are treated by both the civil and the common law as regulations of suits and not of rights. Id. sec. 580; Pothier on Obl. n. 640, 641, 642.

“The common law has firmly fixed its own doctrine, that the prescription of the lex fori must prevail in all cases of personal actions. In all cases of real actions and of actions savoring of the realty, the prescription of the law rei sitœis also to prevail. And as by the common law no action of this sort can be brought ex directo, except in the place rei sitœ, it follows that the lex fori governs, as a universal rule applicable to all cases.” Story's Con. of Laws, sec. 581.

This rule, that the law of limitations of the country where a contract is made is no bar to a suit in a foreign tribunal, has become a formulary in international jurisprudence (Id. sec. 577), and indeed is not now controverted.

It was doubtless the object of the section of our statute referred to, section 13, to create an exception to the rule, and to enable a defendant whose liability was barred by the laws of the...