Adger v. Alston/Opinion of the Court

This court held, previous 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 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 period of its termination. No period was fixed for its commencement, because none was necessary.

Assuming that the commencement of the war was the ordinance of secession of Louisiana, and its close the President's proclamation of August 20th, 1866, and applying the principle of deducting the period of the war from the time in which prescription would have otherwise been counted, as held by this court in Hanger v. Abbott, the ruling of the court below as shown by the bill of exceptions, on the exception of the five years' prescription, would have been sound.

But in the case of The Protector, the question of the precise period of time to be deducted for the interruption in the running of the statute of limitations to be made in consequence of the civil war, was much considered; and the necessity of fixing the precise period was felt by the court to be very pressing. An examination of the several proclamations of the President, and other acts of the political department of the government was had; and as a result it was found that different periods of time must be fixed for different States. It was held that the commencement of the war must be governed by the President's proclamations of blockade, of which there were two. The first, dated April 19th, 1861, embraced the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; and the second, dated April 27th, 1861, embraced the States of Virginia and North Carolina. So there were two proclamations declaring that the war had closed; the first, issued April 2d, 1866, embraces the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas; and the second, issued on the 20th of August, 1866, embracing the State of Texas. And it was held that these dates must be taken as the commencement and the close of the war as to those States respectively, in the question of the time to be deducted for the existence of that war, in counting time under the statutes of limitation.

Under this rule the time which elapsed between the 19th of April, 1861, and the 2d April, 1866, being deducted from the time of the maturity of the bond and the service of the writ in this case, there still remained more than five years, and the plea of prescription in that view would be a bar.

But the question of prescription was submitted to the jury on the facts, under the defence set up in the defendant's answer, and on the trial the court admitted as evidence, against the objection of the defendant, oral statements of conversations and admissions of decedent, tending to prove an acknowledgment of the debt, as due, within the period of prescription, and also admitted for the same purpose indorsements on the bond of payments made of interest up to the year 1863.

In this we think the court erred also. A statute of the legislature of Louisiana, of the year 1858, by its second section enacts that: '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 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.'

The principle of this act is not new in the legislation of England and this country, and its purpose and construction are equally obvious and well understood. It is that no verbal declaration of a deceased man shall be given in evidence to prove against him an acknowledgment of the debt, which would otherwise be barred by the statute of limitations; and that no written evidence shall be offered unless signed by him or his agent.

The case before us comes precisely within both the letter and spirit of the statute. The evidence offered was parol evidence, and if the indorsements of credits on the bond are not strictly parol they are not written evidence signed by the party to be charged; and the objection is to prove an acknowledgment of the debt, against his succession, of a deceased man, by such evidence.

There seems no room for doubt that whatever may be the rule as to parties who are alive, no such evidence is admissible against the administrator of a deceased party.

On both points ruled by the court concerning prescription we think the court erred, and the judgment is, therefore, REVERSED, with directions to grant

A NEW TRIAL.