876
J'El)ERAL REPORTER,
vol. 41.
eary to be appropriated to establish a fund for carrying the bequest into effectwillbedetermined by a reference to a master,on failure of an agreement by counsel; ,and the court will give suoh further direotions as may be required for the proper execution of the trust.
PICKERING 'V. LEIi;JERMAN. 1
(District Oourt, 1>. Del.atware. luuary 8, 1800.)
1.
PRINOIPAI. AND SURETY-CONTRIllU'tION-LAOHES.
The. eqUitable right of between sureties. having long been recog,as the fOUndation of an imp)led, contract, and. the legal action on such contract being barred after three years, contribution soug-btby an administrator of a paying surety.from ·aco-surety will be fetuaed In a court ot equity after an unaccounted for delay of nearly 18 years. '
S. BAME-SUBRoGATIQN. , .A. delay of nearly 18 years to demand subrogation to the judginent against two sureties by a surety who has dlsoharged t.he same is laches, and a court of equity
will not act.
8. SAME-INSA"."iITT 01'. Co-SURETY.
The insanity ofa surety whose portion of a prinolpal's debt has been paid by a co-surety does not dlijayonthe of the latter to demand oontribution, where a t1-'11stee of the lunatic's estate had been appointed, and there was sufficient real estate to 1'ay his debts. ' ',
I
In Equity. On May 1, 1868, Frederick Myers, as principal, with Henry Moore, Christian Metzyer, and Henry' Leiberman, as sureties, executed adiatiller's bond to the United 'States in: the penal sum of $3,000. On September!, 1869; an action of: debt was brought on the bond in this court. Moore and Leiberman were the 'only parties served with summons, the other perSonsoamed not found in the jurisdiction. On October 1, 1871, judgment was entered against Moore and Leiberman, and, to the execution issued thereon, them8.l'shal returned, on January 9, 1872. levied ou goods and chattels of Moore as per inventory, etc. j nulla bona as to Leibermtinj and afterwards,debt, interest, and costs fully paid by Moore. Janu'ary 12, 1872, a. jury, which had been summoned by the sheriff of Kent county, under 8. writ' of, de lunatico inquirendo, found that Leiberman was then, and had been for the two years preceding, and February 17, 1872, CalebS: Pentl'ewill was appointed his trustee. Henry Moore died October 31, 1885, and letters of administration c. t. a. 'were issued to Thomas Pickertng November 6, 1885. A rule to show .cause why the above judgment should not be marked to the use of Moore's administrator was' served on Leiberman's' trustee, October 2, 1889, and the court was informed that the district attorney is authorized to maka the assignment on the record, if it shOuld be so ordered by the court. lReported by Marks Wilkes Collett, ]jlsq., of the Philadelphia bar.
PICKERING V. LElBERMAN.
James Pennewill, for rule. Benj. Nielda, for defendant. WALES, J., (after stating the facts as above.) Several objections are made to the granting of this order, but it will be sufficient to consider that one of them only which is, in the opinion of the court, conclusive, namely, the bar of the statute of limitations. One of two or more sureties, who pays the debt of their principal, is entitled to contribution from each cosurety, and has the right to be subrogated to the original creditor. When the debt is secured by a judgment, the subrogation is ordinarily made by an assignment on the record to the use of the paying surety, and this is one of the modes provided in such cases by the statute of Delaware. The right of contribution is an equitable one, and has long been recognized in law as the foundation of an implied contract between the sureties" and therefore be sued on, in an action of a88'Umpsit, as for money paid for the use of another. Either at law, or in equity, however, the plaintiff must pursue his remedy with diligence, and without unreasonable delay. The legal remedy, being governed by the same rules which apply to actions for the recovery of simple contract debts, I)1ust be commenced within the period prescribed by the statute, which begins to run against a claim for contribution from the time of the payment by the surety. Dodd v. Wilson, 4 Del. Ch. 407; Neilson v. Jity,16 Ohio St. 553; Pitm. Sur. 153; Baylies, Sur. 455. Statutory limitations are statutes of repose. They are positive and arbitrary in their operation, and do not depend on presumption of purchase or of payment, but are enacted for the purpose of quieting titles, and preventing the prosecution of'clllims made long after the transactions which created them. In some may appear to be inconsistent with a perfect standard of justice, but they operate equally, and with such exceptions only as are expressly provided for. "The general rule is," says Mr. Justice BRADLEY, in Amy v. Watertown, 130 U. S. 324, 9 Sup. Ct. Rep. 537, "that the language of the act must prevail, and no reasons based on apparent inconvenience or bardship can justify a departure from it." Nearly 18 years had elapsed after the rendition of the judgment, and before the present rule was obtained. The long neglect of Mr. Moore to compel a contribution from the,estate of Leiberman has not been accounted for, and his been likewise dilatory, only in a lesser degree. The time for bringing an action on a simple contract, in Delaware, is limited to three years; and viewing the present application in the light of' such an action, and as controlled by the same rules,it follows that it must be refused. It is doubtful whether a court of equity would consider the plaintiff as entitled to be subrogated at this late day. That court looks to the particular facts of the case, and, independently of statutory limitations, does not entertain stale demands. Lord CAMDEN in Smith v. may, 3 Brown, Qh. 640, note, .. A court of equity, which is never active in relief against conscience or public convenience, has lI:I}Vays refused its aid to stale demands, where the Jll'rty slept upon his rights 'iLndacquiesced for a great length of time. ·Nothing
can call forth thJscourt into activity but conscience, good fldth, and reasona· ble diligence. Where these are wanting, the cou,rt is passive, and doesnoth. ing; laches and neglect are always discoulltenanced;and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this conrt.")'·, . . .
. Thesetwords of Lord adopted by the supreme conrt ofthe United States in Piatt v. Vattier,9 Pet: 416, and in McKnight) ".Taylor, 1 How. 161. See,also, Sullivan v. Railroad Co., 94 U. S. 811, and Godde:n. v. KimmeU, 99 U.S. 20l. Leiberman's insanity affords no excuse for the long delay in applying for thisfule. The trustee stood in his place, ready to answer all claims; was sufficient to pay all his debts; and these facts were his knowntb'all the have originally paid LeiberIlJsn's sbare of thejudgmenfhassinee doubled by the accumu]a. tionof mterest, and the allowance of the order now would operate as reward for dilatoriness, .and might eStablish a troublesome precedent for the of laches. rule be discharged·
.
OF PHll.ADlll.Pm:A v·. Omo & N.W. Ry.Co. etal., (CINcINNATI, N. ,R. & . . ..R. R. Co., Intervenor.) . .
{Oirmiltt OoUrt, S. D.OMo,'W. D.December 24, 1889.}
LRlILRo.m
Where tile of a railroad company makes an arrangement for the transportation of the freIght and. passengers·of.anotber railroad.company over the Une ·of }lis rolUl, and there is no proyision making the arrangement obligatory on either ·part, for any stated period of time, lIh6 receiver may terminate such arrangement ·at will, withoutPr8vioUB noticeto'the other company. '" 8AM:.B-00NvBY.AJl0B....,ApPURTENANQE8. .·
COKP.AJlIU-1'aANm>OBTATION ARRANGEMENT-POWER 011' REOEIT.BB TO TBRM:INAT,B. '. . ..' .;
A conveyance of a railroad fromone1fivenpoint to another, "Including the two ,. traoks composing what is termSd.,theYY;-'"does not convey the right to use a third · track, uS$d,in.con.nectionwith locomotives on another since such third track Is not anapPurteDance of the line conveyed. . ,.
In Equity. . On intervening petition., T.M. Hinkle, for petitioner. ." . . ·1J.amsey, M<WiDCll& Ramse'lJandHlYlfard HoUMter, for receiver. SAGE, J. I canllot see that. ;tQjilre jsin this case any ground for a J;e. atraining order., ',According to thepEiltitioner's own. showing, there,was an arrangement for and passenger traffic, withnothing more o.ut any for its cont4lul'npe. It was .clearly terminable, so as its; terms indicate, at ,This is conceded, but it is insisted that, from the very nature of the arrangement, petitioner was to reasonable notice. It may, be. that it could not be terminated so or so as to leave petitioner's as to affect freight actually in . cars upon the line of the defenda,nfcompany's road after the third rail . .. , . . ;t !.