The Protector,
76 U.S. 687 (1869)

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U.S. Supreme Court

The Protector, 76 U.S. 9 Wall. 687 687 (1869)

The Protector

76 U.S. (9 Wall.) 687


1. The doctrine declared in Hanger v. Abbott, 6 Wall. 532, that statutes of limitations do not run during the rebellion against a party residing out of the rebellious states, so as to preclude his remedy for a debt against a person residing in one of them, held applicable to the Judiciary Acts of 1789 find 1803, limiting the right of appeal from the inferior federal courts to this Court to five years from the time when the decree complained of was rendered.

Page 76 U. S. 688

2. The Act of March, 1867, allowing appeals from federal courts in districts where the regular sessions of such courts subsequently to the rendering of the judgment had been suspended by rebellion to be brought within one year from the date of the passage of the act is an enabling act, not a restraining one.

Freeborn, a resident of New York, had filed a libel against the ship Protector in the District Court for the Southern District of Alabama, January 25, 1859, for the price of certain necessary supplies and materials previously furnished to the ship in the port of New York. A decree dismissing the libel was pronounced in December, 1859. This decree was affirmed by Mr. Justice Campbell in the circuit court on the 5th of April, 1861. The rebellion broke out soon after, lasting about four years. The appeal from the circuit court to this Court was taken on the 28th day of July, 1869, more than eight years after the date of the decree appealed from.

By the twenty-second section of the Judiciary Act of 1789, it was enacted that writs of error should not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ be an infant, feme covert, non compos mentis, or imprisoned, then within five years, as aforesaid, exclusive of the time of such disability. By an Act of March 3, 1803, appeals were given instead of writs of error in cases of equity and admiralty jurisdiction, and it was provided that they should be subject to the same rules, regulations, and restrictions as were prescribed in law in cases of writs of error, and the same limitation applied, of course, to appeals as to writs of error.

The case, it was admitted, by Mr. Phillips, might, under certain views of what was decided in Hanger v. Abbott, [Footnote 1] be supposed to be taken out of the operation of these acts,

Page 76 U. S. 689

the rebellion having broken out so soon after the decree was affirmed in the circuit court. But he argued that the doctrine of Hanger v. Abbott was not rightly applicable to this special matter of practice, fixed as it was by positive statutes. Whichever way, however, that might be, the provisions made by an Act of March 2, 1867, [Footnote 2] on the very subject of appeals during the rebellion, concluded, as he argued, the matter. That statute ran thus:

"Where any appeal or writ of error has been brought to the Supreme Court from any final judgment or decree of an inferior court of the United States for any judicial district in which, subsequently to the rendition of such judgment or decree, the regular sessions of such court have been suspended or interrupted by insurrection or rebellion, such appeal or writ of error shall be valid and effectual notwithstanding the time limited by law for bringing the same may have previously expired, and in cases where no appeal or writ of error has been brought from any such judgment or decree, such appeal or writ of error may be brought within ONE YEAR from the passage of this act."

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