[234]

The assignment distinctly acknowledges and | tice Marshall said: "Although the court is not
recognizes the indebtedness by reference to an- willing to extend the effect of casual or acci-
other paper, in which that indebtedness is spe- dental expressions farther than it has been, to
cifically described, and which is in evidence in take a case out of that statute, and although
the case. It distinctly promises to pay that in- the court might be of opinion that the cases on
debtedness; and it distinctly gives security for that point have gone too far, yet this is not a
the payment of it. If this paper is not evidence casual or incautious expression; the deed
of a new promise, it is impossible to draw a paper admits the debt to be due on the 15th of
that would be.
July, 1804, and five years had not afterwards
elapsed before the suit was brought." P. 171
[305].

Moore v. Bank of Columbia, 31 U. S. 6 Pet. 86 (8:329); Bell v. Morrison, 26 Ú. S. 1 Pet. 352 (7: 175); Randon v. Toby, 52 U. S. 11 How. 493 (13: 784); Walsh. Mayer, 111 U. S. 31 (28:338).

Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the

court:

The Statute of Limitations in force in the District of Columbia is the Statute of Maryland, which, so far as applicable to this case, closely follows the language of the English Statute, 21 Jac. I, chap. 16, § 3, but bars an action on a promissory note or other simple contract in three years after the cause of action accrues. Maryland Stat. 1715, chap. 23, § 2, 1 Kilty, Laws; Dist. Col. Laws, 1868, p. 284.

The promissory notes sued on were payable respectively on March 10, 1875, and March 10, 1876; and the action was brought March 11, 1880. The question is therefore whether the instrument signed by the defendant on June 21, 1877, is evidence of a sufficient acknowledgment or promise to take the case out of the

statute.

In this

In Clementson v. Williams, 12 U. S. 8 Cranch,
72 [3: 491], in an action on an account against
two partners, one of whom only was served
with process, a previous statement of the other,
upon the account being presented to him, "that
the said account was due, and that he suppose:1
it had been paid by the defendant, but had not
paid it himself, and did not know of its being
ever paid," was held insufficient to take the ac-
count out of the statute; and Chief Justice
Marshall said: "The Statute of Limitations is
entitled to the same respect with other statutes,
and ought not to be explained away.
case there is no promise, conditional or uncon-
ditional, but a simple acknowledgment. This
acknowledgment goes to the original justice of
the account; but this is not enough. The
Statute of Limitations was not enacted to pro-
tect persons from claims fictitious in their ori-
gin, but from ancient claims, whether well or
ill founded, which may have been discharged,
but the evidence of discharge may be lost. It
is not then sufficient to take the case out of
the Act, that the claim should be proved or be ac-
knowledged to have been originally just; the ac-
knowledgment must go to the fact that it is
still due." P. 74 [492].

The principles of law by which this case is to be governed are clearly settled by a series of decisions of this court. The Statute of Limitations is to be upheld and enforced, not as resting only on a presumption of payment from Chief Justice Marshall afterwards pointed [235] lapse of time, but, according to its intent and out that in that case, although the partnership object, as a statute of repose. The original had been dissolved before the statement was debt, indeed, is a sufficient legal consideration made, the case was not determined upon that for a subsequent new promise to pay it, made point, but upon the insufficiency of the aceither before or after the bar of the statute is knowledgment; and added that, upon the princomplete. But in order to continue or to re- ciples there expressed by the court, "an acknowlvive the cause of action, after it would other-edgment which will revive the original cause wise have been barred by the statute, there must be either an express promise of the debtor to pay that debt, or else an express acknowledgment of the debt, from which his promise to pay it may be inferred. A mere acknowledgment, though in writing, of the debt as having once existed, is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor.

In King v. Riddle, 11 U. 8. 7 Cranch, 168 [3: 304], a deed, dated July 15, 1804, by which the defendant recited that certain persons had become his sureties for a certain debt and had paid it, and that he was desirous to secure them as far as he could, and assigned to one of them certain bonds in trust to collect the mon ey and distribute it equally among them, was admitted in evidence in an action by one of them against him for money paid, to take the case out of the Statute of Limitations of Virginia. The exact form of the deed is not stated in the report, but that it expressly recognized the debt to the plaintiff to be still due is evident from the opinion, in which Chief Jus

of action must be unqualified and uncondi-
tional. It must show positively that the debt
is due in whole or in part. If it be connected
with circumstances which in any manner
affect the claim, or, if it be conditional, it may
amount to a new assumpsit for which the old
debt is a sufficient consideration; or if it be
construed to revive the original debt, that re-
vival is conditional, and the performance of
the condition, or a readiness to perform it,
must be shown." Wetzell v. Bussard, 24 U. S.
11 Wheat. 309, 315 [6: 481, 483].

[236]

In Bell v. Morrison, 26 U. S. 1 Pet. 351 [7: 174], Mr. Justice Story fully discussed the subject, and, after dwelling on the importance of giving the Statute of Limitations such support as to make it "what it was intended to be, emphatically, a statute of repose," and "not designed merely to raise a presumption of payment of a just debt, from lapse of time;" and repeating the passages above quoted from the opinions in Clementson v. Williams and Wetzeli [237] v. Bussard, said: "We adhere to the doctrine thus stated, and think it the only exposition of the statute which is consistent with its true object and import. If the bar is sought to be removed by the proof of a new promise, that

[238]

promise, as a new cause of action, ought to be
proved in a clear and explicit manner, and be
In its terms unequivocal and determinate; and,
if any conditions are annexed, they ought to be
shown to be performed. If there be no ex-
press promise but a promise is to be raised
by implication of law from the acknowledg-
ment of the party, such acknowledgment
ought to contain an unqualified and direct ad-
mission of a previous, subsisting debt, which
the party is liable and willing to pay. If
there be accompanying circumstances, which
repel the presumption of a promise or inten-
tion to pay; if the expressions be equivocal,
vague and indeterminate, leading to no certain
conclusion, but at best to probable inferences,
which may affect different minds in different
ways, we think they ought not to go to a jury
as evidence of a new promise to revive the cause
of action." P. 862 [179].

Again, in Moore v. Bank of Columbia, 31 U.
S. 6 Pet. 86 [8: 329], the court, speaking by Mr.
Justice Thompson, after referring to the pre-
vious cases, reaffirmed the same doctrine, and
said: "The principle clearly to be deduced
from these cases is that in addition to the ad-
mission of a present, subsisting debt, there
must be either an express promise to pay, or
circumstances from which an implied promise
may fairly be presumed." P. 93 [331].

or contained in some writing to be signed by
the party chargeable thereby."

The English judges have repeatedly ap proved the statement of Mr. (afterwards Chief Justice) Jervis, that the writing must either contain an express promise to pay the debt, or be "in terms from which an unqualified promise to pay it is necessarily to be implied." Everett v. Robertson, 1 El. & El. 16, 19; Mitchell's Claim, L. R. 6 Ch. 822, 828; Morgan v. Rowlands, L. R. 7 Q. B. 493, 497; citing Jervis' New Rules, 4th ed. 350, note. And it has been often held that when the debtor, in the same writing by which he acknowledges the debt, without expressly promising to pay it, agrees that certain property shall be applied to its payment, there can be no implication of a personal promise to pay. Routledge v. Ramsay, 8 Ad. & El. 221; S. C. 3 Nev. & P. 319; Howcutt v. Bonser, 3 Exch. 491; Cawley v Furnell, 12 C. B 291; Everett v. Robertson, above cited.

The law upon this subject has been well summed up by Vice Chancellor Wigram, as fol- [239] lows: "The legal effect of an acknowledgment of a debt barred by the Statute of Limitations is that of a promise to pay the old debt; and for this purpose the old debt is a consideration in law. In that sense, and for that purpose, the old debt may be said to be revived. It is revived as a consideration for a new promise. In Randon v. Toby, 52 U. S. 11 How. 493 But the new promise, and not the old debt, is [13: 784], cited for the plaintiff, the agreement, the measure of the creditor's right. If a debtor which was held to take a case out of the stat- simply acknowledges an old debt, the law imute, contained not only a pledge of property to plies from that simple acknowledgment a promsecure the notes sued on, but an express stipu-ise to pay it; for which promise the old debt is lation that the notes should remain in as full a sufficient consideration. But if the debtor force and effect as if they were renewed. promises to pay the old debt when he is able, or by installments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him." Philips v. Philips, 3 Hare, 281, 299, 300; Buckmaster v. Russell, 10 C. B. N. S. 745, 750.

In Walsh v. Mayer, 111 U. S. 31 [28: 338], in answer to a letter from the holder of a note secured by mortgage, calling attention to the want of insurance on the mortgaged property, and saying: "The amount you owe me on the $7,500 note is too large to be left in such an unprotected condition, and I cannot consent to it," the mortgagors wrote to him that they expected to insure in about four months for twice that amount, and added: "We think you will run no risk in that time, as the property would be worth the amount due you if the building was to burn down." This was held to be a sufficient acknowledgment, upon the ground that the words, both of the plaintiff's letter and of the defendant's reply, were in the present tense, and designated a subsisting personal liability, and that the unconditional acknowledgment of that liability, without making any pledge of property or other provision for its payment, carried an implication of a personal promise to pay it. The case was decided upon its own facts, and no intention to modify the principles established by the previous decisions was expressed or entertained by the court.

Within a year afterwards, in the latest case on the subject, the court expressly reaffirmed those principles. Fort Scott v. Hickman, 112 U. S. 150, 163, 164 [28: 636, 640].

In full accord with these views are the decisions in England under Stat. 9 Geo. IV, chap. 14, known as Lord Tenterden's Act, which only restricts the mode of proof by requiring that, in order to continue or revive the debt, an "acknowledgment or promise shall be made by

In the most recent English case that has come under our notice, Lord Justice Bowen said: "Now, first of all, the acknowledgment must be clear, in order to raise the implication of a promise to pay. An acknowledgment which is not clear will not raise that inference. Secondly, supposing there is an acknowledgment of a debt which would if it stood by itself be clear enough, still, if words are found combined with it which prevent the possibility of the implication of the promise to pay arising, then the acknowledgment is not clear, within the meaning of the definition," "because the words express the lesser in such a way as to exclude the greater." Green v. Humphreys, 26 Ch. D. 474, 479, 480; S. C. 53 L. J. Ñ. S. Ch. 625, 628.

In the light of the principies established by the authorities above referred to, it is quite clear that the instrument signed by the defendant on June 21, 1877, did not take the plaintiff's debt out of the statute.

This instrument contains no promise of the defendant personally to pay that debt, and no acknowledgment or mention of it as an existing liability. It begins with a reference, by way of consideration only, to the original debt, designating it as "the indebtedness described in the deed of trust" executed to the plaintiff at the time when that debt was contracted. Ther

follows a pledge of a certain claim of the de- | BURLINGTON, CEDAR RAPIDS AND [513] [240] fendant against the government, and its pro- NORTHERN RAILWAY COMPANY, Plff. in Err.,

ceeds, to secure the payment of "said indebted-
ness, with interest thereon at the rate of 8 per
cent per annum until paid." This interest is
mentioned, not as part of the consideration, or of
the original debt, or as anything for which the
defendant is liable, but only as something to the
payment of which the claim pledged shall be
applied. And the instrument concludes with
a promise of the defendant that the proceeds of
the claim pledged shall "be applied to the pay-
ment of said indebtedness, with interest as
aforesaid, or to so much thereof as the sum or
sums of money so received is or are sufficient to
pay."

CHARLES L. DUNN, by ELLIS STONE
GORMAN, His Guardian ad litem.

(See S. C. Reporter's ed. 513-517.)

Removal of causes-when jurisdiction of state
court ceases-issues of fact to be tried in circuit
court-Acts of March 3, 1875, and March 3,
1887.

1. All issues of fact made upon the petition for
removal must be tried in the circuit court; but the
Although the old debt is expressly called, as whether, on the face of the record, a removal has
state court is at liberty to determine for itself
it is in law, the consideration for the new agree-been effected; and if it decides against the removal,
ment, this agreement, and not the old debt, is its action will be reviewable in this court, after
final judgment.
the measure of the plaintiff's right. The pro-
2. The theory on which it rests is that the record
visions for the payment of the debt and interest closes, so far as the question of removal is con-
out of a particular fund exclude any implica-cerned, when the petition for removal is filed and
cation of a personal promise to pay either. The the necessary security furnished. It presents then
to the state court the pure question of law whether,
whole instrument clearly evinces the defend- admitting the facts stated in the petition for re-
ant's intention in executing it to have been moval to be true, it appears on the face of the rec-
that the property pledged should be applied, so
ord that the petitioner is entitled to a removal of
the suit.
far as it would go, to the payment of the debt
[No. 977.]
and interest, and not that his own personal lia-
bility should be increased or prolonged in any
respect.

To imply from the terms of this instrument a promise of the defendant to pay the debt himself would be, in our opinion, to construe it against its manifest intent, and to fritter away the Statute of Limitations.

The result is that the judgment below must be reversed, and the verdict against the defendant set aside. It was contended by his counsel that this court should now direct judgment to be entered upon a former verdict, which was returned for him under a correct ruling on the question of acknowledgment, and set aside by the court in General Term upon a different view of the law. In support of this contention was cited Coughlin v. District of Columbia, 106 U. S. 7 [27: 74]. But the reason for ordering judgment upon the first verdict in that case was not that the court in General Term had wrongly decided a question of law upon a bill of exceptions allowed at the first trial; but that, as appeared of record, independently of any bill of exceptions, the question had not 241] been legally brought before it at all, thus leaving the first verdict in full force. In the present case, it had authority to entertain and pass upon the exceptions taken by the plaintiff at the first trial; when, in the exercise of that authority, it had sustained those exceptions and ordered a second trial, the case stood as if it bad never been tried before; and only the rulings at the second trial, and no rulings, whether similar or different, at the former trial, could be brought to the General Term by the exceptions of the defendant, or to this court by his writ of error.

Submitted May 12, 1887. Decided May 27, 1887.

IN ERROR to the Supreme Court of the State

of Minnesota. Reversed, Remanded.
The history and facts of the case appear in
the opinion of the court.

Messrs. Eppa Hunton and Jeff. Chand-
ler, for plaintiff in error.

Messrs. C. D. O'Brien and Enoch Totten, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

This suit was brought in the District Court of
Ramsey County, Minnesota, by Charles L.
Dunn, a minor, to recover damages for per-
sonal injuries which he had received while
traveling as a passenger on the railroad of the
Burlington, Cedar Rapids and Northern Rail-
way Company. The Company answered the
complaint in the action, and then filed a peti-
tion under section 639 of the Revised Statutes,
verified by the oath of its president, for the re-
moval of the suit to the Circuit Court of the
United States for the District of Minnesota, on
the ground of prejudice and local influence.
The petition was accompanied by the neces-
sary security. It set forth that the Railway
Company was an Iowa corporation, and con-
sequently, in law, a citizen of that State, and
Dunn, the plaintiff, a citizen of Minnesota.
Under section 639 a suit cannot be removed
from a state court to a Circuit Court of the
United States, except it be one between a citi-
zen of the State in which the suit was brought
and a citizen of another State, and then only
by the citizen of the latter State. Immediately
on the presentation of the petition for removal,
the attorney for the plaintiff filed a counter
affidavit to the effect that the plaintiff was not
a citizen of Minnesota, but of the Territory of
Montana. No further proof being offered on
True copy. Test:
this point, the court ruled that a case for re-
James H. McKenney, Clerk, Sup. Court, U. S. moval had not been made out, and that the

Judgment reversed, and case remanded to the
Supreme Court of the District of Columbia, with
directions to set aside the verdict and to order a
new trial.

suit must be retained for trial. Accordingly a
trial was afterwards had in the state court,

[514]

[515]

¡16]

which resulted in a judgment against the Com- | had been said in the opinions in some of the
pany. An appeal was then taken to the Su- cases. To our minds it is the true rule and
preme Court of the State, where the judgment calculated to produce less inconvenience than
of the district court was in all respects affirmed, any other.
including the rulings on the question of re-
moval. To reverse that judgment this writ of
error was brought.

The assignment of errors presents but a single question, and that is whether, as after the petition for removal had been filed the record showed on its face that the state court ought to proceed no further, it was competent for that court to allow an issue of fact to be made upon the statements in the petition, and to retain the suit because on that issue the Railway Company had not shown by testimony that the plaintiff was actually a citizen of Minnesota.

The theory on which it rests is that the record closes, so far as the question of removal is concerned, when the petition for removal is filed and the necessary security furnished. It presents then to the state court a pure question of law, and that is, whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit. That question the state court has the right to decide for itself; and if it errs in keeping the case, and the highest court of the State affirms its decision, this court has jurisdiction to correct the error, considering, for that purpose, only the part of the record which ends with the petition for removal. Stone v. South Carolina, 117 U. S. 432 [supra], and cases there cited.

petition for removal; for the circuit court can
no more take a case until its jurisdiction is
shown by the record than the state court can
be required to let it go until the record shows
that its jurisdiction has been lost. The ques-
tions in the two courts will be identical, and
will depend on the same record; namely, that
in the state court ending with the petition for
removal. The record remaining in the state
court will be the original; that in the circuit
court an exact copy.

It must be confessed that previous to the cases
of Stone v. South Carolina, 117 U. S. 432 [29:
962], and Carson v. Hyatt, 118 U. S. 279 [ante,
167], decided at the last term, the utterances of
this court, on that question, had not always
been as clear and distinct as they might have
been. Thus, in Gordon v. Longest, 41 U. S. But even though the state court should re-
16 Pet. 97 [10: 900], in speaking of removals fuse to stop proceedings, the petitioning party
under section 12 of the Judiciary Act of 1789, may enter a copy of the record of that court,
it was said, p. 104 [902], "It must be made to as it stood on the filing of his petition, in the
appear to the satisfaction of the state court that circuit court, and have the suit docketed there.
the defendant is an alien, or a citizen of some If the circuit court errs in taking jurisdiction,
other State than that in which the suit was the other side may bring the decision here for
brought;" and in Railway Co. v. Ramsey, 89 review, after final judgment or decree, if the
U. S. 22 Wall. 328 [22: 824], that, If upon value of the matter in dispute is sufficient in
the hearing of the petition it is sustained by the amount. R. R Co. v. Koontz, 104 U. S. 5, 15
proof, the state court can proceed no further." [26: 643, 646]. In that case, the same as in the
In other cases expressions of a similar charac- writ of error to the state court, the question
ter are found, which seem to imply that the will be decided on the face of the part of the
state courts were at liberty to consider the act-record of the state court which ends with the
ual facts, as well as the law arising on the face
of the record, after the presentation of the peti-
tion for removal. At the last term it was found
that this question had become a practical one,
about which there was a difference of opinion
in the state courts, and to some extent in the
circuit courts; and so, in deciding Stone v.
South Carolina, we took occasion to say, "All
issues of fact made upon the petition for re-
moval must be tried in the circuit court; but
the state court is at liberty to determine for it-
self whether, on the face of the record, a re-
moval has been effected." It is true, as was
remarked by the Supreme Judicial Court of
Massachusetts in Amy v. Manning, 144 Mass.
153, that this was not necessary to the decision
in that case; but it was said on full considera-
tion and with the view of announcing the
opinion of the court on that subject. Only
two weeks after that case was decided Carson
v. Hyatt came up for determination, in which
the precise question was directly presented, as
the allegation of citizenship in the petition for
removal was contradicted by a statement in
the answer, and it became necessary to deter-
mine what the fact really was. We there af
firmed what had been said in Stone v. South
Carolina, and decided that it was error in the
state court to proceed further with the suit
after the petition for removal was filed, because
the circuit court alone had jurisdiction to try
the question of fact which was involved. This
rule was again recognized at this term in Car-
son v. Dunham, 121 U. S. 421 [ante, 992], and
is in entire harmony with all that had been
previously decided, though not with all that

But, inasmuch as the petitioning party has the right to enter the suit in the circuit court, notwithstanding the state court declines to stop proceedings, it is easy to see that if both courts can try the issues of fact which may be made on the petition for removal, the records from the two courts brought here for review will not necessarily always be the same. The testimony produced before one court may be entirely different from that in the other, and the decisions of both courts may be right upon the facts as presented to them respectively. Such a state of things should be avoided if possible, and this can only be done by making one court the exclusive judge of the facts. Upon that question there ought not to be a divided jurisdiction. It must rest with one court alone, and that, in our opinion, is more properly the circuit court. The case can be docketed in that court on the first day of the next term, and the issue tried at once. If decided against the removal, the question is now, by the Act of March 3, 1887, chap. 373, 24 Stat. at L. 552, put at rest, and the jurisdiction of the state court established in the appropriate way. Under the Act of

[517]

March 3, 1875, chap. 137, 18 Stat at L. 470, | JAMES M. SEIBERT, Collector of CAPE
such an order could have been brought here
GIRARDEAU COUNTY (Mo.), Piff. in Err.,
for review by appeal or writ of error; and to
expedite such hearings our Rule 32 was adopted.
Upon this record as it now stands the state
court was wrong in proceeding with the suit,
and for that reason the judgment of the Supreme
Court is reversed and the cause remanded for
further proceedings in conformity with this
opinion.

Practice-charge to jury-State Constitution. obligations of said County, issued under the Mis

souri Act of March 23, 1868, to facilitate the construction of railroads in that State, it is held: that the provisions for levying and collecting such a tax, contained in sections 6798, 6799 and 6800, Revised Statutes of Missouri of 1879, are not a legal equivalent for the provision contained in said Act of March 23, 1868; that the right of the relator to have ner as county taxes" are levied, is part of the obligation of his contract which is impaired by a change in his remedy making it less efficacious than N ERROR to the Circuit Court of the United that provided at the same time for the collection

A State Constitution cannot, any more than a state statute, prohibit the judges of the courts of the United States from charging juries with regard to matters of fact.

Argued and submitted May 2, 1887. Decided a special tax levied from to time, "in the same man

James H. McKenney, Clerk, Sup. Court, U. 8. inary requirements of the statutes of the State,

[284]