[315] of the Statute of Limitations. But the making . qualified. In Edwards v. United States the case In the present case, it is true, the consoli- [316] As the attempted service of the summons in place of the common council of the city for [317] [318] 142; Walton v. Universal Salvage Co. 16 Mees. man shall have concurrent power with the It is unnecessary to look farther to see what the law of Wisconsin is on this subject. It is perfectly clear that by that law the service of process in the present case was ineffective and void. The counsel for the plaintiff in error endeavor to avoid this conclusion by referring to the Act of 1879, which declares that "The board of street commissioners of said city and the chairman of said board shall have concurrent power with the mayor and common council of said city in the appointment of inspectors and clerks of election, and shall have all other powers conferred by law upon said mayor and common council, subject to the control of said common council, except the power of levying taxes." It is contended that this Act gives to the chairman of the board of street commissiouers the same power as the mayor has to receive service of process against the city. But the Supreme Court of Wisconsin, as we have seen, has expressly decided otherwise. And the language of the Act of 1879 is not that the chairman of the board shall have the power of the mayor, but that the board and the chair With motives we have nothing to do. Certainly, improper motives cannot be attributed to a State Legislature in the passage of any laws for the government of the State. Individuals may be actuated by improper motives, and may take advantage of defects and imperfections of the law for the purpose of defeating justice. The mayor of Watertown may have been actuated by such a motive in resigning his office immediately after being inducted into it. But he had a legal right to resign; and if the plaintiffs are prejudiced by his action, it is damnum absque injuria. The plaintiffs are in no worse case than were the creditors of the City of Memphis after the repeal of its charter and the establishment of a taxing district in its stead. The State has plenary power over its municipal corporations, to change their organization, to modify their method of internal government, or to abolish them altogether. Contracts entered into with them by private parties cannot deprive the State of this par amount authority. See Meriwether v. Garrett, 102 U. S. 472 [26: 197]. The cases of Broughton v. Pensacola, 93 U. S. 266 [23: 896], and Mobile v. Watson, 116 U. S. 289 [29: 620], cannot aid the plaintiffs in this case. Those were cases in which a new name was given to an old corporation, or a new corporation was made out of an old one,-that was the substance of it,—and the question was whether the new corporation or the old corporation by its new name was liable for the old debts; and we held that it was. That was a question of liability, not a question of pro The Statute of Limitations applics to nonresidents as well as residents. Ruggles v. Keeler, 3 Johns. 263; Fowler v. Hunt, 10 Johns. 464; Milton v. Babson, 6 Allen, 322-324; Whitcomb v. Keator, 59 Wis. 609; Parker v. Kelly. 61 Wis. 552. cedure. There the way was open for looking| [320] into the actual relations of the old and new corporations, and deciding according to the justice of the case. Here we are bound by statute; and not by the state statute alone, but by the Act of Congress, which obliges us to follow the state statute and state practice. The federal courts are bound hand and foot, and are compelled and obliged by the Federal Leg-in islature to obey the state law; and according to this law the judgment of the Circuit Court was correct and is therefore affirmed. [320] HENRY AMY ET AL., Piffs. in Er., v. Courts hold the statute as suspended unless the absent debtor leaves such a residence withthe State so that process can be served upon him by leaving the process at his residence. Hackett v. Kendall, 23 Vt. 275; Ward v. Cole, 32 N. H. 452; Penley v. Waterhouse, 1 Iowa, 498. Courts of equity enjoin the party who had procured injunction from setting up the Statute of Limitations. Barker v. Millard, 16 Wend. 572; Robertson v. Alford, 13 Smedes & M. 509; Ingraham v. THE CITY OF WATERTOWN. (No. 2.) Regan, 23 Miss. 213; Rice v. Lowan, 2 Bibb (See S. C. Reporter's ed. 320-327.) Conspiracy to prevent service of process on a city -Statute of Limitations not extended-evasion of service is not fraud. 1. A conspiracy of the officials and residents of a city, to prevent service of process upon it, by the resignation of the mayor, and by the secret meeting of the common council before qualifying and organizing, and by their immediately resigning their offices after the transaction of some necessary business, and the consequent inability to serve such process, does not furnish an excuse for not commencing the action within the time limited by law. 2. The courts cannot create an exception to the operation of the Statute of Limitations, not made by the statute itself, where the party designedly eludes the service of process. 3. Although concealment of fraud has been held ground for suspending the Statute of Limitations, yet the evasion of service of process is not fraud in the legal sense of the term, and is no valid answer to the statutory bar. [No. 197.] Argued March 12, 1889. Decided April 8, 1889. IN ERROR to the Circuit Court of the United States for the Western District Wisconsin, to review a judgment for the defendant on the defense of the Statute of Limitations. Affirmed. The facts are stated in the opinion. Mr. George P. Miller, for plaintiffs in error: The bar of the Statute of Limitations may be avoided at law for fraud in the party seeking to take advantage of it. Sherwood v. Sutton, 5 Mason, 143; Bree v. Holbech, 2 Doug. (Eng.) 655; Jones v. Conoway, 4 Yeates, 109; Persons v. Jones, 12 Ga. 371; First Mass. Turnpike Corp. v. Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435; Welles v. Fish, 3 Pick. 74: Farnam v. Brooks, 9 Pick. 212, 246, Bishop v. Little, 3 Me. 405; Cole v. McGlathry, 9 Me. 131; Bricker v. Lightner, 40 Pa. 199; Bicknell v. Gough, 3 Atk. 558; Carlisle v. Foster, 10 Ohio St. 198; Conyers v. Kenan, 4 Ga. 308. The Statutes of Limitations of the several States did not run against the right of action of parties during the continuance of the civil war. The Protector, 76 U. S. 9 Wall. 687 (19: 812); 8. C. 79 U. S. 12 Wall. 700 (20: 463); Levy v. Stewart, 78 U. S. 11 Wall. 244 (20: 86); U. S. v. Wiley, 78 U. S. 11 Wall. 508 (20: 211); Brown v. Hiatts, 82 U. S. 15 Wall. 177 (21: 128); | Batesville Institute v. Kauffman, 85 U. S. 18 Wall. 152 (21: 775); Ross v. Jones, 89 U. S. 22 Wall. 576 (22: 730). (Ky.) 149; Doughty v. Doughty, 10 N. J. Eq. 347; Chemical Nat. Bank v. Kissane, 32 Fed. Rep. 429; Norris v. Haggin, 28 Fed. Rep. 282; Wood, Lim. par. 243; Jackson v. Huntley, 5 Johns. 65: Jackson v. McKee, 8 Johns. 429. The period during which the commencement of suits was prohibited should not be included in the calculation. Dowell v. Webber, 2 Smedes & M. 452; Moses V. Jones, 2 Nott & McC. 259. The commencement of the action having been stayed by a statutory prohibition, the time of the continuance of the prohibition is not a part of the time limited for the commencement of the action. Hopkirk v. Bell, 7 U. S. 3 Cranch, 454 (2:497); Montgomery v. Hernandez, 25 U. S. 12 Wheat. 129 (6: 575); Braun v. Sauerwein, 77 U. S. 10 Wall. 218 (19: 895). The defendant City of Watertown is estopped by its own conduct from taking advantage of the Statute of Limitations. Randon v. Toby, 52 U. S. 11 How. 517 (13: 784); Killips v. Putnam F. Ins. Co. 28 Wis. Messrs. George W. Bird and Daniel Hall, for defendant in error. Unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment. No exception can be claimed in favor of particular persons or cases unless they are expressly mentioned. Angell, Lim. SS 194, 476, 485, et seq.; Wood, Lim. § 252, p. 495; Duplex v. De Roven, 2 Vern. 540; Hall v. Wybourn, 2 Salk. 420; Beckford v. Wade, 17 Ves. Jr. 87; McIver v. Ragan, 15 U. S. 2 Wheat. 25 (4: 175); Bank of Ala. v. Dalton, 50 U. S. 9 How. 522 (13: 242). The Legislature having made no exception, the court can make none. Kendall v. U. S. 107 U. S. 123 (27: 437); Leffingicell v. Warren, 67 U. S. 2 Black, 599 (17: 261); Fisher v. Harnden, 1 Paine, C. C. 61; U. S. v. Muhlenbrink, 1 Woods, 569; The Sam Slick, 2 Curt. 480. The principle is not modified by the fact that the exception sought to be introduced into the statute, is the fraud of the party setting up and relying on the bar. Hunter v. Gibbons, 1 Hurl. & N. 459; Brown v. Howard, 4 Moore, 508; Bowman v. Wathen, 42 U. S. 1 How. 189 (11: 97); Wood v. Car penter, 101 U. S. 135 (25: 807); Andreae v. Redfield, 98 U. S. 225 (25: 158); Gaines v. Miller, [321] " 111 U. S. 395 (28: 466); U. 5. v. Maillard, 4 | iffs replied (by way of an amendment to their The Statute of Limitations of Wisconsin, as it first appeared in the Territorial Revision of 1839, and the Revision of 1849 was taken from the statutes of New York. The courts of New York had placed a settled construction upon it to the effect we here contend for. When Wisconsin adopted the statute from New York, it adopted with it the construction the New York courts had put upon it. Swearingen v. Robertson, 39 Wis. 462; Draper The construction thus placed upon the Stat- Said plaintiffs allege, on information and belief, that the said defendant, the City of Watertown, and the officers, agents, and citizens and residents of said city did, subsequent to the first day of March, A. D. 1873, conspire together, and with each other, and ever since have conspired together, and with each other, for the purpose and with the preconceived intent and design to defraud these plaintiffs and all other owners and holders of the bonds and coupons to such bonds issued by said city, and to prevent these plaintiffs and other holders and owners of said bonds and coupons from obtaining the service of process on said city. "Said plaintiffs further allege, on information and belief, that each year since the first day of March, 1873, & mayor of said city was elected, as required by law, but said mayor each year, with the intent and design as aforesaid, qualified as hereinafter mentioned and and immediately thereafter placed his resignation in the hands of the city clerk of said city, to be filed by him in case of emergency, and to take effect accordingly. "Said plaintiffs further allege, on informa- Where the statute has once commenced to run, no subsequent disability will interrupt or suspend its running. Mr. Justice Bradley delivered the opinion of the court: This is an action for a money demand brought by the plaintiffs in error against the defendant, the City of Watertown. A summons was sued out against the city on the 19th of June, 1883, and served by the marshal on the 26th of the same month by delivering a copy to the city clerk, the city attorney, and to the last elected chairman of the board of street commissioners. Appearance to the action was entered by the attorneys of the city, and a copy of the complaint was demanded. The complaint was duly filed, and set forth the issue by the city of three bonds for one thousand dollars each, bearing date respectively the first day of June, 1856, and payable on the first day of January, 1877, with interest thereon at the rate of eight per cent per annum, payable semi-annually, and with coupons annexed, to represent the successive installments of interest. The plaintiff prayed judgment for the amount of said bonds and of the last ten coupons on each. The defendant, in its answer, set up as a defense that the several causes of action did not, nor did either of them, accrue within six years next before the commencement of the action; that being the time within which actions upon bonds and coupons must be commenced in the State of Wisconsin. To this answer the plaint filed with the city clerk of said city their re- "Said plaintiffs further allege that since the “Said plaintiffs further allege that, notwithstanding they have used due diligence and have hired attorneys and agents for the purpose of having process served on said city, they have been unable to this date to serve or have served the summons in this action on the mayor of said city or on that person who by law should exercise the functions of mayor of said city.”. The defendants thereupon filed an amended answer, again setting up the Statute of Limita [322] 323] [324] tions, and averring that the plaintiffs did not commence, or attempt to commence, said action, or use any diligence whatever to commence the same, before the 19th of June, 1883. To this answer the plaintiffs demurred, and the court below overruled the demurrer and allowed the plaintiff's twenty days to file such further pleadings as they might deem proper. As the plaintiffs failed to plead further, judgment was entered for the defendant. To this judgment the present writ of error is brought. It will be observed that the plaintiffs do not pretend that they commenced the action within the legal period of six years after the several causes of action accrued; and their excuse for not doing so is, that it would have been of no use, on account of the alleged conspiracy of the officials and residents of Watertown to prevent a service of process, by the resignation of the mayor, and by the secret meeting of the common council before qualifying and organizing, and by their immediately resigning their offices after the transaction of some necessary business. The question is, whether such proceedings on the part of the city officials furnish an excuse for not commencing the action within the time limited by law? The statute itself specifies several exceptions to its operation, as (1st), when the defendant is out of the State; (2d) when he is an alien subject or a citizen of a country at war with the United States; (3d) when the person entitled to bring the action is insane, or under age, or imprisoned on a criminal charge; (4th) when the commencement of an action has been stayed by injunction or statutory prohibition; (5th) where the action is for relief on the ground of fraud, the statute does not begin to run until the discovery by the party aggrieved of the facts constituting the fraud. The question, therefore, is, whether the courts can create another exception, not made by the statute, where the party designedly eludes the service of process? Have the courts the power thus to add to the exceptions created by the statute? That is the precise question in this case. It is said by Mr. Justice Strong, in Braun v. Sauerwein, 77 U. S. 10 Wall. 218, 223 [19:895, 8971, "It seems, therefore, to be established, that the running of a Statute of Limitation may be suspended by causes not mentioned in the statute itself." The observation is undoubtedly correct; but the cases in which it applies are very limited in character, and are to be admitted with great caution; otherwise the court would make the law instead of administering it. The general rule is that the language of the Act must prevail, and no reasons based on apparent inconvenience or hardship can justify a departure from it. nerhassett v. Day, 2 Ball & B. 104, 129; Mitf. Ch. Pl. ed. Jeremy, 269; Blanshard, Lim. 81; Wood, Lim. § 58, p. 114, § 274, p. 586; Angell, Lim. c. 18, 2d ed. p. 188. A dictum of Lord Mansfield in Bree v. Holbech, 2 Doug. 655, 656, that "There may be cases which fraud will take out of the Statute of Limitations," raised the question whether undiscovered fraud might not be set up by way of replication to a plea of the statute in actions at law. Wilkinson, Lim. 115. But this suggestion never obtained the force of law in the English courts. Brown v. Howard, 2 Brod. & Bing. 73; Imperial Gaslight & C. Co. v. London Gaslight Co. 10 Exch. 39, 42, 45; Hunter v. Gibbons, 1 Hurl. & N. 459, 464. Vice-Chancellor Wigram granted relief in equity in the case of Blair v. Bromley, 5 Hare, 542, on the express ground that the acts of fraud were not discovered till within six years of bringing the suit, and that the remedy at law was gone; and his decree was affirmed by Lord Cottenham. 2 Phill. Ch. 354. In this country, however, in many of the States, especially in those States which never had a separate system of equity, the statute has been held not to run, in cases of fraud, until the discovery of the facts constituting the fraud; whilst in other States, in the absence of a statutory provision on the subject, the English doctrine has been adhered to. See Angell, Lim. chap. XVIII; and Wood, Lim. § 58. In most of the States, however, statutes have finally been passed, suspending the statute in cases of fraud until the facts have been discovered, or might have been discovered by reasonable diligence. See the various statutes referred to in Wood, Lim. chap. XXII. From this brief review it appears that concealment of fraud has by many courts been considered good ground for suspending the Statute of Limitations, even in actions at law. But this is a very different thing from attempting to avoid service of process, and cannot be cited as aiding in any way the adoption of such a rule in the latter case. Concealment of fraud prevents a party from knowing that he has been injured and has a cause of action. He cannot take any steps to obtain redress. But when a party knows that he has a cause of action, it is his own fault if he does not avail himself of those means which the law provides for prosecuting his claim, or instituting such proceedings as the law regards sufficient to preserve it. There is one class of cases which is excluded from the operation of the Statute by act of law itself, of which the case in which Mr. Justice Strong made the remark referred to is one: This class embraces those cases in which no action can be brought at alì, either for want of parties capable of suing, or because the law proThe courts of equity, however, from an early hibits the bringing of an action. In such cases day, held that where one person has been in- the general law operates as a qualification, or jured by the fraud of another, and the facts tacit condition of the particular statute. Thus, constituting such fraud do not come to the if a man dies after commencing an action, and it knowledge of the person injured until some abates by his death, and the limitation of time time afterward, the statute will not commence for bringing another action expires before the to run until the discovery of those facts, or un- appointment of an executor or administrator,— til by reasonable diligence they might have the courts have held, that as there is no person been discovered. Booth v. Warrington, 4 to bring suit, the statute is suspended for a Brown P. C. ed. Tom. 163; South Sea Co. v. reasonable period, in order to give an oppor Wymondsell, 3 P. Wms. 143; Hovenden v. Ld.tunity to those interested to have the proper reAnnesley, 2 Sch. & Lef. 607, 631, etc.; Blen- presentative appointed. Blanshard, Lim. pp. [325] |