Statement of the Case.

continued so until his death. In 1866 the judgment was revived by scire facias, process being served on F. only. In 1871 it was in like manner revived. In 1880 O. proceeded on the judgment against H. in the courts of Louisiana, where a judgment is barred by prescription in ten years from its rendition. Being compelled to elect upon which judgment he relied, he elected to stand upon the scire facias judgment of 1871. Held, that, viewed as a new judgment rendered as in an action of debt, the judgment had no binding force in Louisiana, as H. had not been served with process or voluntarily appeared; and considered as in continuation of the prior action and a revival of the original judgment for purposes of execution, it operated merely to keep in force the local lien, and, for the same reason, it could not be availed of as removing the statutory bar of the lex fori.

JUNE 17, 1861, judgment was entered on a bond and warrant of attorney, dated March 1, 1861, for ten thousand dollars, conditioned for the payment of five thousand dollars on the second day of March, 1861, with interest, in favor of Bernard Owens against John Henry and James Feeny in the District Court for the county and city of Philadelphia, now the Court of Common Pleas No. 3, for the county of Philadelphia, State of Pennsylvania, and execution was issued thereon that day. February 3, 1866, a scire facias to revive this judgment was issued returnable the first Monday of March, and served upon Feeny, but returned nihil habet as to John Henry. And a second writ was issued March 19, 1866, and returned nihil. The docket entries show: "Ap'l 21, 1866. Judg't for want of an affidavit of defence," but damages were not assessed until March 17, 1871, when they were entered at $6525. On that day a sci. fa. to revive this latter judgment was issued returnable the first Monday of April, 1871, and returned nihil, and April 11 an alias was issued returnable the first Monday of May, 1871, with a like return.

May 10, 1871, judgment was rendered "for want of an appearance on two returns of nihil," and damages assessed at $8482.50. The record shows the assessment was made up of the amount of the prior judgment, (assessed March 17, 1871, but treated as of the date of the interlocutory judgment,) $6525, interest from April 21, 1866, $1957.50, "real debt, $8482.50."

At the time the original judgment was rendered, John

Counsel for Parties.

Henry was a citizen of the State of Pennsylvania, but he removed to the State of Louisiana in 1865, and became a citizen of that State, residing there from September 5, 1865, until his death, January 3, 1892.

November 1, 1880, Bernard Owens, who was a citizen of Pennsylvania, filed his petition in the Circuit Court of the United States for the Eastern District of Louisiana against John Henry, as a citizen of Louisiana, setting forth the recovery of judgment against Henry and Feeny June 17, 1861, and the issue of the writs of scire facias, upon which he recovered judgment May 10, 1871, in the sum of $8482.50, with interest from that date, together with costs, and prayed judgment, with interest and costs. Henry appeared and filed peremptory exceptions to the petition, which exceptions were sustained, and the plaintiff allowed to amend by declaring on which judg ment he relied. Thereupon, Owens filed his supplemental petition, in which he elected to stand upon the scire facias judgment of May 10, 1871. Defendant again excepted, and also answered that since September 5, 1865, he had been a citizen and resident of Louisiana, and for and during that time had not been a citizen of Pennsylvania, nor domiciled in said State, nor in any manner represented therein, nor been in any manner, by himself or his property, subject to the laws of the State of Pennsylvania; also pleading nul tiel record, and denying that the courts of Pennsylvania ever acquired jurisdiction over him by service or by voluntary appearance.

The case was submitted to the court for trial, a jury being waived, the issues found for defendant, and judgment entered dismissing the suit. While the case was under consideration, Henry died, and it was revived as against his testamentary executor, McCloskey. Thereupon a writ of error was sued out from this court.

Mr. George A. King for plaintiff in error.

Mr. W. S. Benedict filed a brief for same.

No appearance for defendant in error.

Opinion of the Court.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

Judgments for money, whether rendered within or without the State, are barred by prescription in the State of Louisiana in ten years from the date of the rendition thereof. La. Civ. Code, Art. 3547. The original judgment was recovered June 17, 1861, and this action was commenced November 1, 1880. Considered as brought upon that judgment the action was barred, but inasmuch as the original petition set up the judgment on scire facias, rendered May 10, 1871, in respect of which ten years had not run, defendant compelled plaintiff to make his election as to which judgment he relied on, and he elected to stand on the judgment of May 10, 1871. The plea of prescription as to the original judgment therefore became unnecessary.

Ordinarily the writ of scire facias to revive a judgment is a judicial writ to continue the effect of, and have execution of, the former judgment, although in all cases it is in the nature of an action, as defendant may plead any matter in bar of execution, as for instance, a denial of the existence of the record or a subsequent satisfaction or discharge. Foster on Scire Facias, 13, and cases cited; Tidd's Practice, 1090; 2 Sellon's Practice, 275.

Conformably to the exigency of the writ, the judgment on sci. fa., the proceeding being regarded as a continuation of the original action, usually is that plaintiff have execution of the judgment mentioned in the writ with costs. Lilly's Entries, 398, 638; Chitty's Forms, 9th ed., 635; Black, Judgments, § 498. But in Pennsylvania it is held that a scire facias is in such wise a substitute in that State for an action of debt elsewhere, that the judgment should be quod recuperet instead of a bare award of execution; and hence, that a judgment on scire facias cannot be avoided because the original judgment might have been. Duff v. Wynkoop, 74 Penn. St. 300; Buehler v. Buffington, 43 Penn. St. 278; Conyngham v. Walter, 95 Penn. St. 85. Accordingly the judgment of May 10, 1871, was a judgment for the recovery of the amount of

Syllabus.

the judgment of 1866, with interest added thereon to date, and the judgment of 1866 was a similar judgment on the original judgment of June 17, 1861.

Viewed as a new judgment rendered as in an action of debt, it had no binding force in Louisiana, as Henry had not been served with process or voluntarily appeared. And considered as in continuation of the prior action and a revival of the original judgment for purposes of execution, on two returns of nihil, it operated merely to keep in force the local lien, and could not be availed of as removing the statutory bar of the lex fori, for the same reason. Thompson v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U. S. 714; Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287; Steel v. Smith, 7 Watts & Searg. 447; Evans v. Reed, 2 Mich. N. P. 212; Hepler v. Davis, 32 Nebraska, 556.

The Circuit Court was right, and its judgment is

Affirmed.

PEARSALL v. GREAT NORTHERN RAILWAY

COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.

No. 768. Submitted December 16, 1895. - -- Decided March 30, 1896.

In 1856, the Minneapolis and St. Cloud Railroad Company was incorporated by the legislature of the Territory of Minnesota, with authority to construct a railroad on an indicated route, and to connect its road by branches with any other road in the Territory, or to become part owner or lessee of any railroad in said Territory; and also "to connect with any railroad running in the same direction with this road, and where there may be any portion of another road which may be used by this company." By a subsequent act it was, in 1865, authorized “to connect with or adopt as its own, any other railroad running in the same general direction with either of its main lines or any branch roads, and which said corporation is authorized to construct;""to consolidate the whole or any portion of its capital stock with the capital stock or any portion thereof of any other road having the same general direction or location, or to become

Syllabus.

merged therein by way of substitution;" to consolidate any portion of its road and property with the franchise of any other railroad company or any portion thereof; and to consolidate the whole or any portion of its main line or branches with the rights, powers, franchises, grants and effects of any other railroad. These several rights, privileges and franchises were duly accepted by the railway company, and its road was constructed and put in operation. In 1874 the State of Minnesota enacted that "no railroad corporation or the lessees, purchasers or managers of any railroad corporation shall consolidate the stock, property or franchises of such corporation with, or lease or purchase the works or franchises of, or in any way control any other railroad corporation owning or having under its control a parallel or competing line; nor shall any officer of such railroad corporation act as the officer of any other railroad corporation owning or having the control of a parallel or competing line; and the question whether railroads are parallel or competing lines shall, when demanded by the party complainant, be decided by a jury as in other civil issues;" and in 1881 its legislature enacted that "no railroad corporation shall consolidate with, lease or purchase, or in any way become owner of, or control any other railroad corporation, or any stock, franchise, rights of property thereof, which owns or controls a parallel or competing line." In 1889 the company changed its name to Great Northern Railway Company and extended its road towards the Pacific. The Northern Pacific Railroad being about to be reorganized, it was proposed that the Great Northern company should guarantee, for the benefit of the holders of the bonds to be issued by the reorganized company, the payment of the principal of, and interest upon such bonds, and as a consideration for such guaranty, and as a compensation for the risk to the stockholders, the reorganized company should transfer to the shareholders of the Northern company, or to a trustee for their use, one half the capital stock of the reorganized company; and that the Northern Pacific should join with the Great Northern in providing facilities for an interchange of cars and traffic between their respective lines, and should interchange traffic with the Northern company, and operate its trains to that end upon reasonable, fair and lawful terms under joint tariffs or otherwise, the Northern company having the right to bill its traffic, passengers and freight from points on its own line to points on the Northern Pacific not reached by the Great Northern, with the further right to make use of the terminal facilities of the Northern Pacific at points where such facilities would be found to be convenient and economical, jointly with that company. A stockholder of the Great Northern company filed this bill against it, to restrain it from carrying out such agreement. Held, that the Great Northern company was subject to the provisions of the acts of 1874 and 1881, and that the proposed arrangement was in violation of the provisions in those acts prohibiting railroad corporations from consolidating with, leasing or purchasing, or in any other way becoming the owner of, or controlling any other railroad corporation, or the stock, franchises or rights of property thereof, having a parallel or