1. The effect of the rebellion was to suspend the running of
statutes of limitations during its continuance, as well in regard
to the claims of the government against its own citizens resident
in the rebellious states as to the claims by citizens of the loyal
states against that same class of persons. The doctrine of
Hanger v.
Abbott, 6 Wall. 532, and
The
Protector, 9 Wall. 687, which was applied to the
latter case, affirmed and applied to the former.
2. This general rule was not changed by the Act of Congress of
June 11, 1864, 13 Stat. at Large 123, relative to the limitation of
certain actions. On the contrary, that statute requires all the
time to be deducted during which the suit could not be prosecuted
by reason of resistance to the laws or interruption of judicial
proceedings, whether such time was before or after its passage.
Stewart v. Kahn, supra, 78 U. S. 493,
affirmed.
Error to the Circuit Court for the District of Virginia, the
suit below being one by the United States against J. F. Wiley,
former Marshal of the Eastern District of the state just named,
upon his official bond. The case was this:
A statute of April 10, 1806, [
Footnote 1] "relating to bonds given by marshals," enacts
by its second section that it shall be lawful in case of a breach
of condition, "for any person, persons, or body politic thereby
injured, to institute a suit." A fourth section enacts:
"That all suits on marshals' bonds . . . shall be commenced and
prosecuted within six years after the right of action shall have
accrued, saving nevertheless the rights of infants,
feme
coverts, and persons
non compos mentis so that they
sue within three years after their disabilities are removed."
In 1861, the Southern rebellion broke out. The present cause of
action arose in the previous year.
Four years or more afterwards -- that is to say on the 11th of
June, 1864, [
Footnote 2]
Congress passed an act enacting:
"That whenever, during the existence of the present rebellion,
any action, civil or criminal, shall accrue against any person,
Page 78 U. S. 509
who, by reason of resistance to the execution of the laws of the
United States, or the interruption of the ordinary course of
judicial proceedings, cannot be served with process for the
commencement of said action:"
"Or the arrest of such person; or whenever, after such action
shall have accrued, such person
cannot, by reason
of such resistance to the execution of the laws of the United
States, or such interruption of the ordinary course of judicial
proceedings,
be arrested, or served with process for the
commencement of the action:"
"The time during which such person
shall so be beyond
the reach of legal process, shall not be deemed or taken as any
part of the time limited by law for the commencement of the
action."
On the 15th of February, 1869, about nine years after the cause
of action arose, this suit was brought. The defendant pleaded the
statute of April 10, 1806. A general replication was put in, with
leave to offer in evidence all matters which might have been
replied specially. It was agreed of record,
"that, from the 24th day of May, 1861, to the 24th day of May,
1865, the defendants were actual residents of the State of
Virginia, and that during the whole of that period, by reason of
resistance to the execution of the laws of the United States and
the interruption of the ordinary course of judicial proceedings in
the State of Virginia, the defendants could not be served with
process for the commencement of this action."
The court below gave judgment for the marshal, and the United
States brought the case here.
Page 78 U. S. 512
MR. JUSTICE STRONG delivered the opinion of the Court.
Whether the Act of April 10, 1806, which prescribes a limitation
to suits upon marshals' bonds, is applicable to suits brought by
the United States, is a question which we do not propose now to
answer, for if it is, we are still of the opinion that the
defendants; plea of the statute was an insufficient bar.
The cause of action arose in 1860, and the present suit was
brought on the 15th of February, 1869. But it is stipulated between
the parties that from the 24th day of May, 1861, to the 24th day of
May, 1865, the defendants were
Page 78 U. S. 513
actual residents of the State of Virginia, and that during the
whole of that period, by reason of resistance to the execution of
the laws of the United States and the interruption of the ordinary
course of judicial proceedings in said State of Virginia, the
defendants could not be served with process for the commencement of
the action. We know judicially that during the four years in which
the process could not be served there existed a state of war, and
that the inability to effect service was caused by that. The
question, therefore, is whether the time during which the war
existed and during which it was impossible to serve process for
commencement of suit is to be deducted from the time which elapsed
between 1860 and February 15th, 1869.
In
Hanger v. Abbott, it was decided that the effect of
the war was to suspend the running of statutes of limitation during
its continuance in suits between the inhabitants of the loyal
states and the inhabitants of those in rebellion. The same doctrine
was repeated in substance in
The Protector. It would
answer no good purpose to go behind the decisions and review the
reasons upon which they are founded. We are still of opinion that
they rest upon sound principle. But it is said those decisions only
rule that the war suspended the statutes' running against claims by
one citizen upon another, and that they do not relate to claims of
the government against its own citizens resident in rebellious
states. This may be conceded, but the same reasons which justify
the application of the rule to one class of cases require its
application to the other. True, the
right of a citizen to
sue during the continuance of the war was suspended, while the
right of the government remained unimpaired. But it is the loss of
the ability to sue, rather than the loss of the right that stops
the running of the statute. The inability may arise from a
suspension of right, or from the closing of the courts, but
whatever the original cause, the proximate and operative reason is
that the claimant is deprived of the power to institute his suit.
Statutes of limitations are indeed statutes of repose. They are
enacted upon the presumption that one having a well founded
Page 78 U. S. 514
claim will not delay enforcing it beyond a reasonable time, if
he has the power to sue. Such reasonable time is therefore defined
and allowed. But the basis of the presumption is gone whenever the
ability to resort to the courts has been taken away. In such a
case, the creditor has not the time within which to bring his suit
that the statute contemplated he should have. It is quite obvious
that this is the case, as well where the government is the creditor
as where the creditor is a citizen of the government, and if,
therefore, the running of the statute is suspended in favor of the
citizen, with equal reason must it be in favor of the government.
There is also great force in the thought suggested by the
observations made in
Hanger v. Abbott, that
"unless the rule be so, the citizens of a state may escape the
payment of their debts to the government by entering into an
insurrection and rebellion, if they are able to close the courts
and successfully resist the laws until the bar of the statute shall
have become complete. Such a doctrine is too unreasonable to be for
an instant admitted."
It has been argued, however, on behalf of the defendants in
error that if the general rule be as above stated, it was changed
by the Act of Congress of June 11, 1864. The operation of the
statute, it is said, is to direct that the time
after the
passage of the act during which process might be hindered
shall be deducted in computing the time within which the action
should have been brought, and hence that an implication arises that
the time antecedent to its passage shall not be deducted. Such is
not our understanding of the enactment. It is doubtless prospective
as furnishing a rule for the action of courts, but it did not
abrogate the common law. Even were it admitted that the time
required to be deducted is only that which was after the passage of
the act, there is no necessary implication that the time antecedent
to its passage should be taken as a part of the period limited by
law for the commencement of actions. The act of March 2, 1867,
[
Footnote 3] authorized appeals
and writs of error
Page 78 U. S. 515
from and to courts in judicial districts when the regular
sessions of the courts had been suspended by insurrection or
rebellion, if brought or sued out within one year from the passage
of the act. This act might with more reason be claimed as raising
an implication that such appeals or writs of error cannot be
allowed after the expiration of a year from its passage. Yet in
The Protector it was held that an appeal was in time
though not taken until July 28, 1869, more than eight years after
the final decree in the circuit court, and more than two years
after the enactment of 1867, and this because the four years of the
war were to be deducted. In other words, the statute, being
affirmative only, raised no implication of an intent to repeal a
former statute or alter the common law to which it was not
repugnant.
The purpose of the act of 1864 was manifestly remedial -- to
preserve and restore rights and remedies suspended by the war.
Hence it is entitled to a liberal construction in favor of those
whose rights and remedies were in fact suspended. The mischief it
sought to remove would be but half remedied were it construed as
contended for by the plaintiffs in error. It is not, therefore, to
be admitted that the intention of Congress was to prescribe a
deduction only of the time which might elapse after the passage of
the act, during which it might be impossible to serve process. On
the contrary, we are of opinion that the statute requires all the
time to be deducted during which the suit could not be prosecuted
by reason of resistance to the laws, or interruption of judicial
proceedings, whether such time was before or after its passage.
Such we have decided to be its meaning at the present term, in
Stewart v. Kahn, [
Footnote
4] and it is unnecessary to repeat the reasons given for the
decision.
These observations are sufficient to show that in our opinion
there was error in entering a judgment for the defendants.
Judgment reversed and the cause remanded for further
proceedings.
[
Footnote 1]
2 Stat. at Large 374.
[
Footnote 2]
13
ib. 123.
[
Footnote 3]
14 Stat. at Large 545.
[
Footnote 4]
Supra, 78 U. S. 493, the
case immediately preceding.
