ERROR to the Circuit Court for the Eastern District of Arkansas; the case being thus:
On the 11th of June, 1864, Congress enacted that:
'Whenever, during the existence of the present rebellion, any action . . . shall accrue against any person 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; OR whenever after such action . . . shall have accrued such person cannot, &c.
'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 such action.'
In addition to this, this court has repeatedly decided that during the civil war, the courts of the United States in the insurrectionary States were closed, and that statutes of limitation did not run against suitors having a right to sue in the Federal courts.
It has also decided that in Arkansas the war was flagrant from April, 1861, till April, 1866.
In the State just named, actions of assumpsit are barred by the statute of limitations in five years.
'SECTION 1. Any person bound as security for another in any bond, bill, or note, for the payment of money, or the delivery of property, may, at any time after action hath accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and other party liable.
'SECTION 2. If such suit be not commenced within thirty days after the service of such notice, and proceeded in with due diligence, in the ordinary course of law, to judgment and execution, such security shall be exonerated from liability to the person notified.
In this condition of the law, on the 31st of January, 1860, Rives gave to Bull-both persons being citizens of Arkansas-a promissory note, payable on the 1st of November, 1861. Bull indorsed it to Jones, of Memphis, Tennessee; both the States of Tennessee and Arkansas having, in the late civil war, been members of the so-called Confederate States of America. The note was not paid at its maturity, and it having been protested, notice of the dishonor, &c., was given to Bull.
Bull died in November, 1869, and letters of administration on his estate were granted to one Ross.
Jones, now, October 13th, 1871, brought assumpsit on the note against the administrator, Ross, on the indorsement of Bull, his intestate.
The defendant pleaded two pleas.
1. The first plea was the statute of limitations of five years.
'That from the 1st of June, 1861, to the 2d of April, 1866, a war existed between the United States and the Confederate States, including the State of Arkansas, where during all that period the said Bull resided, and that during all that period the courts of the United States in and for the State of Arkansas were, by reason of the said war, closed, and no process could be issued therefrom or served on the said Bull, the authority of the United States therein being resisted, &c. That the said Bull died in said State on the 15th November, 1869, and that letters testamentary were granted, &c.; and that, counting out the period of the said war, the plaintiff's cause of action did accrue within five years next before the said grant of letters on the estate of Bull.'
'That during the said rebellion, and on account thereof, the said courts were so closed that legal process could not be issued against this defendant from the month of May, 1861, until the month of March, 1865, and not longer; without this, that said courts were so closed from the 1st day of June, 1861, to the 6th of August, 1865.'
'Because it puts in issue a matter of public law pleaded in the said replication.'
The court sustained this demurrer.
2. The second plea (which was founded on the abovequoted statute about persons bound as security for another in any bill, note, &c.) was thus:
'That Bull was only an indorser on the note, and, as such, only security; that Rives was the principal, and had ample property and effects out of which to make the debt, and that after the note had become due and payable and been protested for non-payment, to wit, on the 1st day of January, 1861, Bull had given notice to Jones to bring suit upon the note immediately, and that in default of then doing so he, Bull, would hold himself free from all liability on the same. But that Jones had not brought suit on the note for more than the space of thirty days, nor indeed until the bringing of the present suit, October, 1871.'
The plaintiffs demurred to this plea because: