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.