THIS case was brought up, by writ of error, from the District Court of the United States for the Middle District of Alabama. Townsend was a citizen of the State of Mississippi, and Jemison of Alabama. In September, 1844, Jemison brought a suit, in the District Court of the United States for the Middle District of Alabama, against Townsend, who was in Alabama. The nature of the suit is explained in the following short specification of claim, filed by the counsel for the plaintiff. 'This action is brought to recover damages for the nonperformance of an agreement made by the defendant with the plaintiff, that if the plaintiff would procure, take up, and obtain a note made by Robert Weir, A. F. Young, and the said defendant, and Henry Buchanan, for $4,000, dated Columbus, April 12, 1839, payable nine months after the 24th of April, 1839, to the Mississippi Union Bank, at their banking-house in Jackson, bearing ten per cent. interest after maturity, if not punctually paid, but upon which note the said A. F. Young was to pay the said bank $1,000; and would also procure, take up, and obtain a note, made by the said defendant and A. F. Young, Andrew Weir, and Henry Buchanan, dated Columbus, April 12, 1839, for $4,000, payable nine months after the 24th of April, 1839, to the Mississippi Union Bank, at its banking-house in Jackson, to bear ten per cent. interest after maturity, if not punctually paid, but upon which note A. F. Young was to pay $1,000; that he, the defendant, would take up, procure, and obtain a note, made by John B. Jones, Thomas Townsend (the said defendant), Eli Abbott, and Samuel D. Lauderdale, dated Columbus, Mississippi, May 24th, 1839, for $9,806.50, payable six months after date to the Commercial Bank of Columbus, or order, at their bank; which agreement the defendant wholly failed to perform, although the plaintiff, upon his part, fully performed the said agreement. Other counts will be added in the declaration. 'Attest: CRABB & COCHRAN, Plaintiff's Attorneys.' The declaration set forth the transaction with more particularity, and also contained the common money counts and an account stated. To the first count the plaintiff in error pleaded in bar; First, that the promise was unwritten, made in Mississippi, and to be performed there, and was made more than three years before this suit; and that, by the statute of limitations of Mississippi, the right of action is barred upon such a promise after three years. Secondly, the same matter, with an averment that the cause of action accrued in Mississippi more than three years before this suit. To these pleas there was a demurrer. To this first count the plaintiff in error further pleaded, as to parcel thereof, non-assumpsit, and as to the residue, a former action brought and judgment recovered by the defendant in error against him. The defendant in error joined issue on the parts of this plea respectively, to the court and to the country. To the whole declaration the plaintiff in error pleaded non-assumpsit, on which issue was joined; and also that the causes of action accrued more than three years before suit, averring himself to have been a citizen of Mississippi, and that the promises were there made and there to be performed; and to this plea the defendant in error demurred. In this state of the pleadings, the cause came on for trial, on the 7th of December, 1846, when the following proceedings were had. 'This day came said parties, by their attorneys, and the demurrer to the first three pleas of the said defendant, by him above pleaded, coming on to be heard, and having been fully argued by counsel, and understood by the court, it is adjudged by the court that the said first three pleas by the defendant above pleaded, and the matters therein alleged, are insufficient in law to bar the said plaintiff from having or maintaining his said action against said defendant; and the court doth accordingly sustain the said demurrer. And as to so much of the said fourth plea by the said defendant, by him above pleaded, as alleged a former recovery of three thousand four hundred and fifty-one dollars and eighty-eight cents, in the District Court of the United States for the Northern District of Mississippi, on account of the undertaking of the said defendant 'to pay three thousand dollars, or any other part or parcel of the said note, made by the said John B. Jones, Thomas Townsend, Eli Abbott, and Samuel D. Lauderdale, in consideration that the said plaintiff would pay three thousand dollars, or any other part or parcel of the note made by Thomas Townsend, A. F. Young, Andrew Weir, and Henry Buchanan,' and set out at large in said count, on which issue was joined to the court, the record therein referred to being seen and inspected by the court, and the same being fully considered, the court adjudged that there in such a record, as alleged in said plea, of a recovery on the promise of the said Thomas Townsend to pay on the note of the said John B. Jones, Thomas Townsend, Eli Abbott, and Samuel D. Lauderdale, as mentioned in said plea, the like amount that should be paid by plaintiff on the note of the said Thomas Townsend, A. F. Young, Andrew Weir, and Henry Buchanan. And as to the residue of said fourth plea, and the fifth plea, upon which issue was taken to the country, thereupon came a jury of good and lawful men, to wit, Amos Briggs, and eleven others, who, being impanelled, tried, and sworn the truth to say upon the issues joined, upon their oaths do say, they find the issues in favor of the plaintiff, and assess his damages at four thousand six hundred and forty-five dollars. It is therefore considered by the court, that the plaintiff recover of said defendant said sum of four thousand six hundred and forty-five dollars, the damages by the jury assessed as aforesaid, in manner and form aforesaid, together with the costs in this behalf expended.' Townsend sued out a writ of error, and brought the case up to this court. It was argued by Mr. Key, for the plaintiff in error, and Mr. Lawrence and Mr. Badger, for the defendant in error.
It is thought that this is an open question. The decisions of this court, touching the general question as to the effect of statutes of limitation, are to be found in the following cases: Hawkins v. Barney, 5 Peters, 457; Bank of U. States v. Donnally, 8 Peters, 361; McElmoyle v. Cohen, 13 Peters, 312. The decisions in these cases will be found, upon examination, not to have settled the present question: But see Leroy v. Crowninshield, 2 Mason, 151; Bell v. Morrison, 1 Peters, 373; Goodman v. Munks, 8 Porter, (Ala.) 84; Davis v. Minor and Wife, 1 How. Miss. 184. It will be perceived by the two cases last cited, that the highest court of the State of Alabama has decided in favor of the validity of a plea of limitations of another State, when the bar has been perfected; and the High Court of Errors of the State of Mississippi has affirmed the same principle. In Leroy v. Crowninshield, Judge Story felt constrained, by the decisions of the courts of the States in which the parties respectively resided, to decide the question contrary to his own judgment; but the highest courts of the States in which the parties to this suit are respectively resident have decided in accordance with that judgment.