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ADGER v. ALSTON.

December 1, 1872

ADGER
v.
ALSTON.



ERROR to the Circuit Court for the District of Louisiana; the case being thus: On the 29th of February, 1868, Alston, a citizen of South Carolina, brought an action in the court below against W. E. Adger, administrator of John Adger, the latter in his lifetime and the former at the commencement of the action citizens of Louisiana; the foundation of the action being a penal bond conditioned for the payment of $4500, with interest, on the 1st of January, 1858. Anticipating, probably, a defence of what is called in Louisiana 'prescription' (a defence equivalent to that known in other States as that of the 'statute of limitations'), the petition set forth that the interest had been paid to the 1st of January, 1863; all which it was alleged 'will appear by the said bond annexed for reference and made part of the petition.' An instrument which purported to be the bond was accordingly annexed to the petition; and on it were various indorsements in the handwriting of Alston, or in what purported to be so, and signed by him, acknowledging payment of interest at various times 'up to January 1st, 1863.' The law of prescription of the State of Louisiana was relied on as a defence, and this defence presented the only matter assigned for error in this court. The defendant pleaded and relied on the five years' prescription in his answer, and also filed what in the practice of that State is called the exception of the five years' prescription. This exception according to that practice was tried by the court without a jury, and on this trial the court ruled, as is shown by a bill of exceptions, 'that the whole of the time of the late rebellion or civil war, viz., from the 26th of January, 1861, when the ordinance of secession was passed by the convention in Louisiana, to the 20th of August, 1866, when the proclamation of the President was made, declaring the restoration of peace between the States, should be deducted from and not counted as the time during which prescription ran, and, therefore, there was not a period of five years between the claim as made in the plaintiff's petition, to the service of the citation in the suit at bar.' This court had held, in United States v. Anderson,*fn1 previously to the decision in the present case in the Circuit, that as to the time of bringing suits in the Court of Claims under the Captured and Abandoned Property Act, which, by the terms of that act, must be within two years after the close of the war, the proclamation of the President of August 20th, 1866, announcing that peace prevailed all over the United States, which had also been adopted by Congress as the close of the war in regard to certain military services, must, as to those matters, be held to be the date of its termination. No date was fixed for its commencement. Notwithstanding the ruling already mentioned of the court below, by which the court decided against the plea of prescription, the question of prescription was submitted to the jury on the facts under the defence set up in the answer; and the court admitted on the trial, against the defendant's objection, oral statements of conversations and admissions of the defendant's intestate, tending to show that he had acknowledged the debt as lately as 1863, and also admitted for the same purpose the indorsements on the bond of the payment of interest. A statute of Louisiana, passed in 1858,*fn2 it is here necessary to state, enacts as follows: 'SECTION 2. Hereafter parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability against his succession, in order to take such debt or liability out of prescription, or to receive (revive) the same after prescription has run or been completed; but in all such cases the acknowledgment or promise to pay shall be proved by written evidence, signed by the party to be charged, or by his specially authorized agent or attorney in fact.' Judgment having been given for the plaintiff the case was now here on error.

The opinion of the court was delivered by: Mr. Justice Miller delivered the opinion of the court.

Mr. W. W. Boyce, in support of the judgment, and for the defendant in error:

1. Was the plea of prescription set up made out? It will be admitted by all that the civil war, during which the Federal courts were closed, suspended the running of the prescription or statute of limitations. This is settled by Hanger v. Abbott.

Now, we must assume that the commencement of the war was on the day when the ordinance of secession of Louisiana passed. This was January 26th, 1861. The close of the war was decided by this court in United States v. Anderson to have been August 20th, 1866. In other words, the war in Louisiana lasted five years, six months, and twenty-four days. Then the matter of the prescription of five years stands thus:

Yrs. mos. dys.

From January 1st, 1858, when the bond was due, to January 26th, 1861, when suit, before the war, might

have been brought, is 3 0 26

From August 20th, 1866, when an ability to sue, after the war began, till February 29th, 1868, when

the writ was served, is 1 6 9

Whole term, from date when the bond became due to the time when the writ was served, within which suit

could have been brought, 4 7 5

Or, putting the thing in another form––

Yrs. mos. dys.

From January 1st, 1858, when the bond became due, to February 29th, 1868, when the writ ...


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