Though by the articles 3505 and 3506 of the Civil Code of
Louisiana, it is provided that bills and notes are prescribed in
five years from their maturity, and that this prescription runs
against minors, interdicted persons, and persons residing out of
the state,
Held that the term of the late rebellion interrupted,
on the principles announced in
Hanger v.
Abbott, 6 Wall. 534, and in the later case of
The Protector,
9 Wall. 687, the running of the prescription in favor of a creditor
who during the war resided in one of the loyal states.
Levy, of Louisiana, gave, in August, 1860, to Stewart, of New
York, three promissory notes, at six months each. They were dated
on different days in the month just named and payable at New
Orleans, on the corresponding days of February, 1861. Very soon
after the maturity of the notes the rebellion broke out. On the
19th April, 1861, proclamation of blockade was made of the Southern
coast and war soon became flagrant. However, the City of New
Orleans was taken possession of by the government forces 6th May,
1862, and the circuit court of the United States reorganized there
24th June, 1863. The notes had been duly presented before the war,
at maturity, and payment refused. Stewart now, July 27, 1868, sued
on them in the court below. The defendant pleaded what is known in
Louisiana as the prescription of five years, under sections 3505
and 3506 of the civil code of the state, a plea in good degree
resembling that known in most states as a plea of the statute of
limitations. This prescription, however, under the code runs
against minors, interdicted persons, and persons residing out of
the state; herein being unlike the statutes of limitations in most
of the states, or that of James I, from which most of these were
copied, where the rights of such persons are specially saved. A
plea alleging new facts being considered by the Louisiana practice
as denied, without replication or rejoinder, the plea here was to
be regarded as open to every objection of law and fact, the same as
if specially pleaded.
Page 78 U. S. 245
It was in proof that the defendant resided in Bayon Sara, in the
Parish of West Feliciana, or at Clinton, in the Parish of East
Feliciana, at the dates at which the notes sued on were given and
matured, and that he continued to reside there during the war.
That he had an agent in New Orleans during the war, and made one
or two visits to New Orleans towards the close of the war.
That the plaintiffs resided in the City of New York during the
whole of the above-mentioned time.
That the plaintiffs brought suit on the same cause of action on
the 4th day of March, 1868.
That the defendant made a compromise and settlement of the suit
with the attorney, who had brought it as the attorney at law of the
plaintiffs; that in consequence of the said compromise and
settlement the attorney discontinued the suit on the 8th of May,
1868.
That the attorney had no authority from the plaintiffs to enter
into the compromise, or make the settlement, or discontinue the
suit, and that the plaintiffs repudiated his acts in the case so
soon as informed of them, and afterwards brought the present
suit.
On the foregoing facts, the court overruled the plea of
prescription and gave judgment for the plaintiff.
The defendant excepted to the decision of the court, on the
ground:
First, that the bringing of the first suit, May 4, 1868, did not
interrupt prescription, and,
Second, that by the decisions of the Supreme Court of Louisiana,
the highest court in the state, the civil war did not interrupt
prescription, and that the courts of the United States are bound to
follow the decisions of the Supreme Court of Louisiana upon the law
of prescription of the state of Louisiana.
Page 78 U. S. 249
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Statutes of limitations exist in all the states, and with few
exceptions they have been copied from the one brought here by our
ancestors in colonial times. [
Footnote 1] They are regarded as statutes of repose
arising from the lapse of time and the antiquity of transactions,
and they also proceed upon the presumption that claims are
extinguished whenever they are not litigated in the proper forum
within the prescribed period.
Page 78 U. S. 250
Exceptions are to be found in all such statutes, but cases where
the courts of justice were closed in consequence of insurrection or
rebellion are not within the express terms of any such exception
contained either in the original act or any other of later
date.
Express exceptions of the kind, it is conceded, do not exist,
and if none can be implied, then all debts due from one belligerent
to another, as well as executory contracts involving commercial
intercourse with the enemy, are practically discharged, as, if the
war is of much duration, prior claims will be barred by the local
statute of limitations.
Enemy creditors cannot prosecute their claims subsequent to the
commencement of hostilities, as the rule is universal and
peremptory that they are totally incapable of sustaining any
contract in the tribunals of the other belligerent.
Absolute suspension of the right to sue and prohibition to
exercise it exist during the war by the law of nations, but the
restoration of peace removes the disability and opens the doors of
the courts. [
Footnote 2]
Peace, it is said, restores the right and the remedy, but it
cannot restore the remedy if the war is of much duration, unless it
be held that the operation of the statute of limitations is also
suspended during the period the creditor is prohibited by the
existence of the war and the law of nations from enforcing his
claim.
On the twenty-seventh of July, 1868, the plaintiffs in the court
below commenced an action of assumpsit against the present
plaintiff on three promissory notes, signed at New York and made
payable at New Orleans. One, dated August 6, 1860, due six months
after date, for sixteen hundred and eighteen 55/100 dollars;
another, dated August 23, 1860, due six months after date, for
fourteen hundred and fifteen 59/100 dollars; and the other, dated
August 20, 1860, due six months after date, for four hundred and
forty-two 17/100 dollars, all of which notes, at maturity, were
duly presented for
Page 78 U. S. 251
payment, which being refused, they were duly protested for
nonpayment. Process was duly issued, and being served, the
defendant appeared and pleaded as a defense the prescription of
five years as established by the civil code of the state.
New facts alleged by the defendant in his answer are considered
as denied by the plaintiff in the state courts without any
replication, and the same rules of practice have been adopted in
the circuit courts. Matters in avoidance, therefore, alleged in the
answer, are open to every objection of law and fact the same as if
specially pleaded. [
Footnote
3]
Viewed in that light, as the pleadings must be, the issue
between the parties was the same as it would be in jurisdictions
governed by the common law, where the plaintiff replied denying the
allegations of the answer, or pleaded specially that the operation
of the prescription was suspended during the late civil war, and
that the plaintiff did commence his suit within five years next
after the cause of action accrued. [
Footnote 4]
Testimony was taken and the parties were heard, but the court,
neither party requesting a jury, overruled the plea of prescription
and entered judgment for the plaintiffs. Subsequent to the
judgment, a statement of facts was filed, signed by the judge and
the parties, which consists of the pleadings, the notes and
documents offered in evidence, the entries in the minutes of the
proceedings, the judgment of the court, together with a statement
of the evidence introduced. By the statement it appears that the
defendant, at the dates at which the notes were given and when they
matured, resided at Bayou Sara, and that he continued to reside
there during the war of the rebellion; that he had an agent in New
Orleans during that period, and that he made one or two visits
there towards the close of the war; that the plaintiffs resided
throughout that period in the City
Page 78 U. S. 252
of New York; that on the 4th of March, 1868, they brought a suit
for the same cause of action; that the defendant made a compromise
and settlement of the same with the attorney who instituted the
suit, whereby the suit, on the eighth of May following, was
discontinued; that the attorney, in making the settlement and in
discontinuing the suit, acted without authority, and that the
plaintiffs repudiated his acts in the case as soon as they were
informed of the same, and afterwards brought the present suit.
Exceptions were taken by the defendant to the rulings and
decision of the court upon three grounds, as follows:
(1) Because the bringing of the first suit did not interrupt the
prescription established by the laws of the state.
(2) Because the civil war did not interrupt the prescription
under the rule established by the decisions of the supreme court of
the state.
(3) Because the courts of the United States are bound to follow
the decisions of the supreme court of the state in respect to the
law of prescription, as applied to such causes of action.
Different views, however, were entertained by the circuit court,
and judgment was rendered for the plaintiffs. Whereupon the
defendant sued out a writ of error and removed the cause into this
Court.
Much discussion of the first response made by the plaintiffs to
the defense of prescription as set up by the defendant in his
answer is unnecessary, as the court is of the opinion that the
decision of the case must turn upon the second response of the
plaintiffs to that defense, which is, that in computing the five
years since the cause of action accrued the period during which the
courts of the state where the defendant resided were closed in
consequence of the late civil war must be deducted.
Regulations exist in some of the states that where a first suit
is abated and a second suit is brought within a prescribed time the
statute of limitation shall cease to run from the date of the first
suit, but the court is not referred to any such enactment as
applicable in this case, and it is believed that none such exists,
as the code of the state provides that
Page 78 U. S. 253
if the plaintiff, after having made his demand, abandons or
discontinues it, the interruption shall be considered as having
never happened. [
Footnote
5]
Grant all that, still the question remains to be considered
whether the alleged prescription was not interrupted by the fact
that the courts of the state where the defendant resided were
closed by the late civil war for such a period of time that the bar
was not complete when the present suit was commenced.
Proclamation of blockade was made by the President on the
nineteenth of April, 1861, and on the thirteenth of July in the
same year Congress passed a law authorizing the President to
interdict all trade and intercourse between the inhabitants of the
states in insurrection and the rest of the United States. [
Footnote 6]
On the twentieth of August, 1866, the President by his
proclamation of that date proclaimed that the insurrection was at
an end and that peace, order, and tranquility were fully restored
in all the states. [
Footnote
7]
Permanent military possession of New Orleans, it is conceded,
was taken by our forces at a much earlier period, and it is also
true that the circuit court was organized there at the date
specified in the statement of facts, but that portion of the state
where the defendant resided still remained within the lines of the
insurrectionists, and of course the courts of the state were closed
so far as respects the rights of the plaintiffs in this case.
[
Footnote 8]
Throughout the entire period between the dates of those
proclamations, the courts of the state were closed to the
plaintiffs, and they were totally incapable of instituting any suit
for the enforcement of their claim. [
Footnote 9]
Exceptions, not mentioned in the statute of limitations,
Page 78 U. S. 254
have sometimes been admitted, and this Court decided in the case
of
Hanger v. Abbott, [
Footnote 10] that the time during which the courts of the
states in rebellion were closed to the citizens of the rest of the
Union is to be excluded in suits, since brought, from the
computation of the time fixed by the statutes of limitation within
which suits may be brought, though no such exception is expressly
admitted in the limitation act. Neither laches nor fraud can be
imputed to the creditor in such a case, as the inability to sue
becomes absolute by the declaration of war wholly irrespective of
his consent or opposition. When the contract was made, he was
competent to sue, but the effect of war is to suspend his right
during its continuance not only without any fault on the part of
the creditor, but under circumstances which make it his duty to
abstain from any such attempt. His remedy, as was said in that
case, is suspended by the two governments and by the law of nations
not applicable at the date of the contract, and which comes into
operation in consequence of an event over which he has no control.
[
Footnote 11]
Recent decisions of the supreme court of the state are referred
to by the defendant in which it is denied that any exception
whatever is allowed in any case, in the law of prescription, as to
bills and notes. [
Footnote
12]
None of those decisions is founded upon any express enactment,
and the reasons assigned for the conclusion are not satisfactory.
They admit that the maxim
"contra non valentem agere non currit
prescriptio" is a maxim of universal justice, but deny that it
applies to causes of action founded upon bills and notes, chiefly
because "they are prescriptible against minors and interdicted
persons as well as others," which the chief justice of that court,
in the case first cited, held to be an unsatisfactory reason for
the conclusion, and in that view the Court here entirely
concurs.
Suppose that the rule of that court cannot be adopted,
Page 78 U. S. 255
still it is insisted by the defendant that the suspension of the
prescription ceased when the rebellion came to an end; that the
suit was instituted too late, as it might have been commenced
within five years next after the cause of action accrued, and
certain continental authorities are referred to where that rule is
apparently maintained. [
Footnote
13]
Authorities of the kind, though entitled to great respect, are
not obligatory, and the Court is of the opinion that the rule
adopted in the case of
Hanger v. Abbott [
Footnote 14] is more consonant with justice
and more in accordance with the analogies of our law than the one
suggested by those commentators.
Even the supreme court of the state which refused to adopt that
rule admits that the law ought to be so, but proceeds to show from
certain prior decisions of this Court that it is not so, not one of
which is an authority to support the proposition for which they
were invoked.
Evidently the case before the Court is controlled by the
decision in the case of
Hanger v. Abbott and
The
Protector, [
Footnote
15] and the Court as now constituted adheres to those
decisions.
Creditors' debts due from belligerents are suspended during war,
but the debts are not annulled. They are precluded during war from
suing to recover their dues, but with the return of peace we return
the right and the remedy. [
Footnote 16]
Where a debt has not been confiscated during war, the rule is
now universally acknowledged that the right to sue revives when
peace is restored, and the rule is that the restoration of peace
returns to the creditor both the remedy and the right, which
necessarily implies that the law of limitation was suspended during
the same period.
Judgment affirmed.
Page 78 U. S. 256
[
Footnote 1]
Story Conflict of Laws § 576.
[
Footnote 2]
The William
Bagaley, 5 Wall. 405;
Jecker
v. Montgomery, 18 How. 111;
The Hoop, 1
Robinson, 200.
[
Footnote 3]
Daquin v. Coiron, 3 La. 392;
Muse v.
Yarborough, 11
id. 533;
Swilley v. Low, 13
La.Ann. 412;
Bank v. Allard, 8 Martin N.S. 141.
[
Footnote 4]
Riley v. Wilcox, 12 Robinson's Louisiana 648; Code,
article 329.
[
Footnote 5]
Code, article 3485.
[
Footnote 6]
12 Stat. at Large 257-258.
[
Footnote 7]
United States v.
Anderson, 9 Wall. 70; 14 Stat. at Large App. 7.
[
Footnote 8]
The Venice, 2
Wall. 258.
[
Footnote 9]
The Hoop, 1 Robinson, 200; Wheaton's Law of Nations, by
Lawrence, 544, 877;
Esposito v. Bowden, 4 Ellis &
Blackburne 963;
Griswold v. Waddington, 16 Johnson
438.
[
Footnote 10]
73 U. S. 6 Wall.
532.
[
Footnote 11]
The
Protector, 9 Wall. 689.
[
Footnote 12]
Rabel v. Pourciau, 20 La.Ann. 131;
Lemon v.
West, 20
id. 427;
Smith v. Stewart, 21
id. 75.
[
Footnote 13]
2 Troplong, De la Prescription 258 &c.
[
Footnote 14]
73 U. S. 6
Wall. 534.
[
Footnote 15]
76 U. S. 9 Wall.
687.
[
Footnote 16]
Chitty on C. and M. 423; Wheaton's Law of Nations, by Lawrence,
541; Vattel, book iii, c. 6, § 77.