LEVY V. STEWART, 78 U. S. 244 (1870)

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U.S. Supreme Court

Levy v. Stewart, 78 U.S. 11 Wall. 244 244 (1870)

Levy v. Stewart

78 U.S. (11 Wall.) 244


Though by the articles 3505 and 3506 of the Civil Code of Louisiana, it is provided that bills and notes are prescribed in five years from their maturity, and that this prescription runs against minors, interdicted persons, and persons residing out of the state,

Held that the term of the late rebellion interrupted, on the principles announced in Hanger v. Abbott, 6 Wall. 534, and in the later case of The Protector, 9 Wall. 687, the running of the prescription in favor of a creditor who during the war resided in one of the loyal states.

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 27, 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.

Page 78 U. S. 245

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 4, 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.

Page 78 U. S. 249

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