
    Hendricks and Another v. Comstock.
    In an action instituted in this state, upon a judgment rendered in another state, a plea of the statute of limitations of the latter state will not, as a general rule, be sustained.
    There may be a distinction between a statute limiting the time within which an action may be brought, and one simply raising a presumption of payment by lapse of time; but a defense based upon either relates to the remedy, and not to the merits, and is governed by the lex fori.
    
    
      Friday, May 27.
    APPEAL from the St. Joseph Court of Common Pleas.
   Davison, J.

The appellee, who was the plaintiff, sued Hendricks and Cottrell, administrators of Alexis Coquillard, upon a judgment against their intestate, rendered on the 15th of October, 1842, by a Court of record, held within and for the county of Berrien, and state of Michigan.

The defendants’ answer contains seven paragraphs. The first is a general denial. By the sixth, it is averred that the judgment sued on was rendered in Michigan, more than ten years before the commencement of this suit; and' that, by § 24 of ch. 140 of the Revised Statutes of that state, approved May 18, 1846, the same is presumed to be paid and satisfied. The section to which the defense refers, is therein set forth, and is as follows:

Every j udgment and decree in any Court of record of the United States, or of this or any other state, shall be presumed to be paid and satisfied at the expiration of ien years after the judgment or decree was entered.”

The seventh paragraph alleges payment by the intestate in his lifetime. The other paragraphs make no point in the case, and will not, therefore, be further noticed.

To the sixth paragraph a demurrer was sustained; but to the seventh, the plaintiff replied by a general denial.

Issues of fact Ayere submitted to a jury. There was a verdict for the plaintiff. New trial refused, and judgment.

Upon the trial, the plaintiff produced and gave in evidence an authenticated transcript of the record of the judgment in suit, and rested. And thereupon the defendants offered in evidence a printed statute-book, purporting to be printed under the authority of the state of Michigan, and containing the section referred to in their answer. And further, they offered to prove, by a competent Avitness, that Coqaillard, the intestate, from the time the judgment was rendered until his death, which occurred in January, 1855, was, at all times, abundantly able to pay all his liabilities, and was possessed of a large capital and extensive resources. But their offers Avere severally resisted by the plaintiff, and refused by the Court.

The only questions noticed in the argument, relate to the action of the Court in sustaining the demurrer to the sixth defense, and in refusing to admit the defendants’ evidence.

In -support of the demurrer, it is assumed that, to an action instituted in this state, upon a judgment rendered in a sister state, a plea of the statute of limitations of the latter state cannot be sustained.

This position, as a general rule, is no doubt correct. Does it apply to the question raised by the demurrer? The appellants contend that the statute set up in the defense is not a statute of limitations; that it does not limit the time within which an action may be brought, but simply raises a presumption of payment by lapse of time. The distinction thus pointed out may exist. 2 Pars, on Cont. 341, et seq. Still, each defense relates to the remedy, and not to the merits of the action, and the inquiry arises—Are they, in reference to the case made by the record, subject to the same rule of decision ? The rule is thus stated: “ In regard to the merits and rights involved in actions, the law of the place where they originated is to govern; but the form of remedies, and the order of judicial proceedings, are to be according to the rules of the place where the action is instituted.” Story’s Confl. of Laws, §§ 558, 576.—13 Pet. 312.—9 Plow. 407.

J. L. Miller and- George, for the appellants.

A. G. Deavitt, for the appellee.

The statute before us does not, in any degree, affect the right involved in the action. It relates to a rule of evidence. It declares, in effect, that the plaintiff, in a suit on a judgment, instituted at the expiration of a given period after it was entered, cannot recover unless he proves that it remains unpaid. Thus, the statute seems to be a mere regulation of the order of judicial procedure in reference to actions on judgments presumed to be paid. It must, therefore, be held to relate to the law of the remedy, and cannot, in view of the rule to which we have referred, be deemed operative in any state other than the one in which it was enacted. And the result is, that the action having been instituted in this state, the matter set up in the sixth paragraph is not well pleaded. Such a defense, to be availing, must be founded upon, and brought within, the statutory enactments of the state in which suit is brought. See 2 R. S. p. 78, § 225.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.  