for years, severing many millions of countrymen between whom the most extended and intimate commercial relations existed. Intercourse across the line of war was forbidden and became penal. The federal courts were closed in Confederate territory. Rules derived from each of these circumstances were invoked to prevent the running of the Statute of Limitations and the accrual of interest upon obligations whose performance was thus frustrated by no fault of the parties thereto. The writer contributed to the Law Quarterly Review of London for July, 1909, an article of nineteen pages, in which it is believed to have been shown that the rule was overwhelmingly settled in the United States that interest did not run during such period as the parties to an obligation were separated by the line of war. The United States cases seem to be equally explicit to like effect that the Statute of Limitations ceases to run when the parties to an obligation are separated by the line of war, or when the courts to which they must apply are unable to sit in consequence of war. 9 In Jackson Ins. Co. v. Stewart the action was on a bill of exchange drawn in Tennessee in 1861 on a drawee in Maryland. It was held that the Statute of Limitations did not run during the period in which war was flagrant between the states mentioned. Speaking of the suspension of the right to sue, the court says (p. 312): "This suspension, being by the exercise of the paramount authority of the government, cannot be held to work a forfeiture of the plaintiff's cause of action, but his right to sue, suspended by the war, revived when it ceased." The opinion cites no authorities. Perhaps the most complete and authoritative case in the United States upon the subject is Hanger v. Abbott.10 Abbott of New Hampshire sued Hanger of Arkansas in assumpsit. The question was whether the time while the courts of Arkansas were closed by the rebellion was to be excluded in computing the time fixed for limitation of action by the Arkansas statute, there being no exception or exemption stated in the statute. Mr. Justice Clifford gave the opinion of the court. 9 I Hughes 310, 13 Fed. Cas., No. 7,152 (1866). 10 6 Wall. (U. S.) 532; Scott's Cases on International Law, p. 500 (1867). His reasoning is that debts existing prior to war (between enemies) are not annulled, but the remedy merely is suspended as a necessary result of the inability of an alien enemy to sue in courts; that though the Statute of James the First enumerated specific exceptions which did not include the one under discussion, the omission was due to the fact that debts due alien enemies were confiscated for more than a century after that statute was enacted, and therefore law-makers, regarding such debts as annulled by war, never thought of making provision for their collection on the restoration of peace. The court regarded the old English decisions" as of little weight, even if correctly reported, on the ground that they were made before the rule of international law was acknowledged, that war only suspends debts due an enemy, and that peace had the effect to restore the remedy. It was held, accordingly, that the Statute of Limitations did not run while the creditor was incapable of suing, owing to the state of war. The inability to sue seems to rest both on the closing of the courts and suspension of intercourse. The doctrine of Hanger v. Abbott has been followed in a series of interesting cases. The first of these is The Protector,12 where the time of the beginning and termination of the War of the Rebellion as to acts of limitation was held to be determined by public acts of the political department. The Proclamation of Blockade by the President as to certain states was held to determine the commencement as to such states, and the Proclamation of Termination as to certain states by the President to determine the close as to such states. Alabama was named in the first Proclamation of Blockade and the first Proclamation of Termination of War. An appeal, filed May 17, 1871, from a decree of April 5, 1861, of a United States Circuit Court for Alabama to the Supreme Court at Washington was dismissed, more than five years having elapsed between the date of the decree and the appeal, after subtracting the time when the war was flagrant. The opinion of Chief Justice Chase is brief and unsatisfactory, but evidently applies the broad principle that the Statute of Limitations cannot run when a state of war prevents the doing of the acts necessary to prevent its running. 11 Hall v. Wybourn, 2 Salk. 420 (1689); Prideaux v. Webber, 1 Levinz 31 (1661); Lee v. Rogers, 1 Levinz 111 (1663). 13 Shortly thereafter, in Semmes v. Hartford Insurance Co.,13 the Supreme Court decided that though the rule was established that a Statute of Limitations ceased to run when war prevented the doing of the acts required to stay its running, yet the rule was wholly otherwise where, under an insurance policy, certain acts were required by its terms within twelve months after loss. The war having frustrated the acts at the time specified, the stipulation therefore was held a condition from which the plaintiff was relieved by the war making performance impossible. The plaintiff was therefore wholly relieved therefrom and not bound to do the acts within a twelvemonth after peace, the general Statutes of Limitations being the only limits left. The opinion is by Mr. Justice Miller, considered as able as any member of the bench at that time or since. The third case is Brown v. Hiatts.14 This was a bill of foreclosure. The mortgage was given in Northern territory and secured on Northern land (in the State of Kansas) to Brown, a resident of Virginia. After loaning the money and taking the security in Kansas, Brown returned to Virginia and there remained in territory declared to be in insurrection. It was claimed the action was barred by a Statute of Limitations of Kansas. Mr. Justice Field, holding that the statute did not run, in the course of his opinion said (p. 184): "Statutes of Limitation, in fixing a period within which rights of action must be asserted, proceed upon the principle that the courts of the country where the person to be prosecuted resides, or the property to be reached is situated, are open during the prescribed period to the suitor. The principle of public law which closes the courts of a country to a public enemy during war, renders compliance by him with such a statute impossible. As is well said in the recent case of Semmes v. Hartford Insurance Co. (13 Wall. 160), 'The law imposes the limitation and the law imposes the disability. It is nothing, therefore, but a necessary legal logic that the one period should be taken from the other.'" 15 It will be observed that the exclusion of the alien enemy from the court is the basis of the decision. The rule was settled that an alien enemy might be sued even though he could not have a right to bring suit in the courts of the hostile nation. McVeigh v. United States.16 This was there held in a proceeding for forfeiture of property under an act of Congress directed against those aiding rebellion, and it was held that the owner of property sought to be condemned is entitled to appear and contest the charges, though, when proceedings were brought and his answer filed, a resident within the enemy's lines and an enemy. The court holds (p. 267) that the liability to be sued carries with it the right to use all the means and appliances of defence, quoting from Bacon's Abridgment (title Alien, D), "For as an alien may be sued at law and may have process to compel the appearance of his witnesses, so he may have the benefit of a discovery." In University v. Finch 17 Mr. Justice Miller, pointing out the limitations of this decision, said (p. 110): "That case laid down the proposition that when a citizen of a state adhering during that war to the national cause brought suit afterwards against a citizen residing during the war within the limits of an insurrectionary state, the period during which the plaintiff was prevented from suing by the state of hostilities should be deducted from the time necessary to bar the action under the Statute of Limitations. It decided nothing more than this. It did not decide that a similar rule was applicable in a suit brought by the latter against the former." The doctrine thus seems well settled in American law that where the parties are divided by the lines of war the statute does not run. But where the parties are citizens of the same power, in which the courts are closed, the authorities do not display this unanimity. The later and prevailing decisions, however, hold that the Statute of Limitations is suspended even in suits between persons of the same power, where war has closed all lawful courts. Thus in Adger v. Alston,18 in a suit between citizens of South Carolina and Louisiana, both states adhering to the Confederacy, the statute was held not to run while war was flagrant. Batesville Institute v. Kauffman 19 applied the rule to prevent the running of the Statute of Limitations as to a judgment lien on real estate, where, owing to the war, judicial proceedings in the courts of the United States were suspended in the state where the land lay, the location of the parties not being considered. 16 II Wall. (U. S.) 259 (1870). 18 15 Wall. (U. S.) 555 (1872). 17 18 Wall. (U. S.) 106 (1873). And in Ross v. Jones 20 the court held that it had been repeatedly decided that during the Civil War the courts of the United States in the insurrectionary states were closed, and that the Statute of Limitations did not run against suitors having a right to sue in the federal courts. That therefore the rule "applied to suits between persons in different states of the late so-called Confederate States of America, as much as to suits between citizens of the North, which remained loyal, and citizens of the so-called Confederate States, with which they were at war." 21 Turning to the decisions of the state courts, it will be observed that in general they support the federal authorities as to the cessation of the running of the Statute of Limitations during war.22 The bearing of a factor of international law on the problem remains to be considered. By sub. h, article 23, of the Convention of The Hague of 1907, it is especially forbidden “To declare abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party." Thus a "hostile" is to be heard in the courts of his enemy if he can lawfully get there, and it has 20 22 Wall. (U. S.) 576 (1874). 21 See Cross v. Sabin, 13 Fed. 308 (1882). 22 Thus Bennett v. Worthington, 24 Ark. 487 (1866), cites, approves, and follows the rule of the early English cases above, except as it was modified by statute in Arkansas. But this view was shortly overruled and the federal decisions followed in Metropolitan Bank v. Gordon, 28 Ark. 115 (1872), and this later doctrine was adhered to in Mayo v. Cartwright, 30 Ark. 407 (1875). Williamson v. McCrary, 33 Ark. 470 (1878), applied like rules to a statute of non-claim. In Mixer v. Sibley, 53 Ill. 61 (1869), the Supreme Court of Illinois decided that the rules above considered would not prevent the maintenance of an action in rem by a plaintiff domiciled in United States territory to enforce a claim against a debtor within the territory of the Confederacy, since such suit required no illegal or "locomotive intercourse" across the line of war. In Perkins v. Rogers, 35 Ind. 124 (1871), the suspension of the statute was fully applied. A plaintiff in Louisiana bringing suit against a defendant in Indiana was held exempt from the operation of the Statute of Limitations, even though New Orleans (where he was domiciled) was for a part of the time occupied by federal troops, that not removing his incapacity to sue in a Northern state, he being still an enemy, whatever his personal sentiments. Selden v. Preston, 11 Bush (Ky.) 191 (1874), a suit on an obligation for $24,000, fully affirms and follows the federal rule as above, and holds that a state statute providing that the time when plaintiff is a citizen of a country at war with the United States is not to be computed as a part of the period limited for the commencement of the action, is "but a declaration of what the law was prior to the enactment of the statute and the exception existed as well without as with it." For other decisions by state courts, see WOOD, LIMITATIONS, § 6. |