# Levy v. Stewart

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United States Supreme Court
78 U.S. 244
Levy v. Stewart
ERROR to the Circuit Court for the District of Louisiana; the case being thus:
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 27th, 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.
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 4th, 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.
Mr. P. Phillips, for the plaintiff in error:
The first suit, which was commenced the 8th May, 1868, and which was discontinued, can have no effect upon the plea, for the code expressly provides, article 3485, that when a plaintiff, 'after making his demand, abandons or discontinues it, the interruption shall be considered as having never happened.'
The question then is, what effect was produced by the war on the law of prescription, when the suit is brought in Louisiana on a contract payable in Louisiana? Before considering which question of law a point of fact-a part of the case, in truth, though not referred to in the record-must be settled. That question of fact is,-when, for the purpose of a suit by Stewart against Levy, did the war end? It ended, we suppose, in April or May, 1865.
By proclamation of the 29th of April, 1865, all restrictions upon commercial intercourse with so much of the State of Louisiana as lies east of the Mississippi River, and were within the lines of military occupation, were removed. Bayou Sara and Clinton, the residence of the defendant, were at that date within the lines, and they lie to the east of the river. This is matter of indisputable fact, personally known to all residing thereabouts, and is part of the public history of the war.
By another proclamation of the 10th of May, 1865, it is declared that armed resistance to the authority of the government in the insurrectionary States may be regarded as virtually at an end.
We assume, then, that for the purpose of a suit the war terminated in May, 1865. With that assumption we proceed.
As the District Court of the United States was reorganized in New Orleans in 1863, there was no impediment in the way of the plaintiff, and he may have brought his suit at any time from that period to February, 1866, before the prescription of five years would have expired. From the close of the war to this latter period there were still nine months in which the parties could have brought their suit. This they did not avail themselves of, but took their first action three years after the termination of the war.
Now, was this in time? We submit that it was not.
There are two well-established propositions which would seem to show this:
1. That a fixed and received construction of a State statute, by the highest court of the State, is as effectual as if written into the statute by direct legislative declaration.
2. That this court has repeatedly held that the construction of the State statute of limitations is conclusive; and that they will not only adopt the construction given by the State court, but will follow any change of construction that may be made by the State court.
On these propositions the language of the court is this:
'The same reason which influences this court to adopt the construction given to the local law, in the first instance, is not less strong in favor of following it in the second, if the State tribunals should change the construction. A refusal in the one case as well as in the other, has the effect to establish in the State two rules of property.'
'If the construction of the highest judicial tribunal of a State forms a part of its statute law, as much as an enactment by the State legislature, how can this court make a distinction between them? There could be no hesitation in so modifying our decisions as to conform to any legislative alteration in a statute, and why should not the same rule apply when the judicial branch of the State government, in the exercise of its acknowledged functions, should, by construction, give a different effect to a statute from what had at first been given to it?'
Now the five year prescription is construed by the Supreme Court of Louisiana in Rabel v. Pourciau. It is there declared that the maxim 'contra non valentem agere, non currit prescriptio,' does not apply to this peculiar prescription which runs against 'minors, interdicted persons, and absentees.'
The court further hold that war was an impediment which would excuse the party from acting while the war lasted. But if after this impediment was removed, there still remained the tempus utile in which the creditor could have sued before the expiration of the five years, he was bound to act within that time. This tempus utile is fixed by the decision at six months.
And this is the doctrine of many eminent French jurists. Troplong on the subject quotes a decree of the Court of Cassation, 1st August, 1829, to the effect that war does not suspend prescription when the creditor had the means of exacting his debt in another place than that declared in a state of blockade. He then says as a logical consequence, if the impediment proceeding from war or pestilence occurs in an intermediate time, and not a time bordering on the expiration of the prescription, it ought not to be taken into account, since when the creditor is free to act he has all the time that is necessary to compel his debtor to pay, for where would be from that time the 'force majeure,' which alone authorizes the suspension of prescription? By way of illustration, he says:
'I reside in a city which is blockaded for the period of one year, and twenty years remain to avoid the thirty years prescription of my right: would it not be ridiculous to attempt a justification of negligence in not acting during this period and demanding that this period of siege should not be counted as part of the thirty years? What force majeure has paralyzed me, since for twenty years I could at any moment have avoided this impediment?'
We must pay strict attention, says he, to the fact that a hindrance founded on war is not written in the law, that it is never legalized but by an act of 'force majeure,' shown to the satisfaction of the judge, and that he should never admit it but when sustained by an irreparable and invincible obstacle. He adds:
'When the creditor has had sufficient time (tempus utile) to redress himself, force majeure is a vain allegation, and the time thus lost, so easy to repair, just as the time of an apoplexy, or fever, or grief. The time of prescription is in fine regulated by law, with sufficient latitude and favor, so that it is not necessary that each (every) day should be 'absolument utiles."
But, independently of this, the decision already quoted of Rabel v. Pourciau, cited, is sustained by fifteen cases, reported in 20th and 21st Louisiana Annual; and if any construction can be considered as part of the local statute, this must be. As thus construed, it should be enforced by this court. The appellee had nine months after the war terminated and before the prescription expired. Nor is there anything hard in this view. Prescription it must be remembered is governed by the law of the forum; in other words the law of the State in which the suit is brought. When we therefore ascertain what that law is, it governs all judicial proceedings, whether the same are instituted in the State courts or the courts of the United States administering justice in that State. A citizen of another State suing a citizen of Louisiana on a Louisiana contract, can have no cause to complain, if the law applicable to the limitation of his right to sue is the same as is applied to suits between her own citizens.
Messrs. S. M. Johnson and C. F. Peck, contra.
Mr. Justice CLIFFORD delivered the opinion of the court.

## Notes

* ↑ 13 Stat. at Large, 76.
* ↑ Ib. p. 757.
* ↑ Green v. Neal, 6 Peters, 298.
* ↑ 20 Louisiana Annual, 131.
* ↑ Droit Civile Expliqu e de la Prescription, vol. 2, p. 258.
* ↑ See specially Durbin v. Speller, 20 Louisiana Annual, 219; Payne & Harrison v. Douglass, Ib. 280; Durand v. Hienn, Ib. 345; Marcy v. Steele, Ib. 413; Norwood v. Mills, Ib. 422; Lemon v. West, Ib. 427; Watts v. Bradley, Ib. 523.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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