Since communication between persons who are domiciled respectively in the territory of the belligerent power is forbidden during the continuance of the war,1 and since the courts of each country are closed to plaintiffs who are domiciled in the territory of the adversary belligerents,2 the courts have been placed in the dilemma of being obliged to hold, on the one hand, that the Statute of Limitations runs as against a creditor who is not permitted to enter the country or to appoint a local agent or attorney, or to sue in the courts; or, on the other, that the period during which the courts are closed to the alien enemy plaintiff is to be deducted from the entire period which has elapsed between the time that the cause of action accrued and the time at which the action on such cause was begun. Of these two possible solutions, the courts have adopted the latter and they have held that in such cases the period of the war is to be deducted from the total period which has elapsed between the accrual of the cause of action and the commencement of the action thereon; or, as it is sometimes put, that the operation of the period of limitations is suspended during the period of the war.3
"The respondent, although an alien enemy, is, of course, entitled to defend before a judgment should be entered. McVeigh v. United States (11 Wall. 269). See also, Windsor v. McVeigh, 93 U. S. 274, 280; Hovey v. Elliott, 167 U. S. 409. It is now represented by counsel. But intercourse is prohibited by law between subjects of Austria-Hungary outside the United States and persons in the United States. Trading with the Enemy Act of October 6, 1917, Sec. 3 (c), c. 106, 40 Stat. 411. And we take notice of the fact that free intercourse between residents of the two countries has been also physically impossible. It is true that, more than three years ago, a stipulation as to the facts and the proof of foreign law was entered into by the then counsel for respondent, who has died since. But reasons may conceivably exist why that stipulation ought to be discharged or modified, or why it should be supplemented by evidence. We can not say that, for the proper conduct of the defense, consultation between client and counsel and intercourse between their respective countries may not be essential even at this stage. The war precludes this. "Under these circumstances, we are of opinion that the decree dismissing the libel should be set aside and the case remanded to the district court for further proceedings, but that no action should be taken there (except such, if any, as may be required to preserve the security and the rights of the parties in statu quo) until, by reason of the restoration of peace between the United States and Austria-Hungary, or otherwise, it may become possible for the respondent to present its defense adequately. Compare, The Kaiser Wilhelm II, 246 Fed. Rep. 786; Robinson & Co. v. Continental Insurance Company of Mannheim , 1 K. B. 155, 161-162." Watts v. Unione Austriaca Di Navigazione, etc., 248 U. S. 9, 63 L. ed. - . .
1 See Sec. 2726.
2 See Sec. 2761 et seq.
3 United States. Hopkirk v. Bell, 7 U. S. (3 Cranch) 454, 2 L. ed. 497; Hanger v. Abbott, 73 U. S. (6 Wall.) 532, 18 L. ed. 939; Brown v. Hiatts, 82 U. S. (15 Wall.) 177, 21 L. ed. 128; Bird v Louisiana State Bank, 93 U. S. 96, 23 L. ed. 818.
Arkansas. Williamson v. McCrary, 33 Ark. 470.
Illinois. Mixer v. Sibley, 53 III. 61.
Indiana. Perkins v. Rogers, 35 Ind. 124, 9 Am. Rep. 639.
Kentucky. Selden v. Preston, 74 Ky. (11 Bush.) 191.
Missouri McMerty v. Morrison, 62 Mo. 140.
South Carolina. Robson v. Wall, 2 Nott & M'C. (S. Car.) 497, 10 Am. Dec. 623.
Wisconsin. Ahnert v. Zaun, 40 Wis. 622.
"It is unnecessary to go at length over the grounds upon which the court has repeatedly held that the Statutes of Limitation of the several states did not run against the right of action of parties during the continuance of the Civil War. It is sufficient to state that the war was accompanied by the general incidents of a war between independent nations; that the inhabitants of the Confederate states on the one hand, and of the loyal states on the other, became thereby reciprocally enemies to each other, and were liable to be so treated without reference to their individual dispositions or opinions; that during its continuance all commercial intercourse and correspondence between them were interdicted by principles of public law as well as by express enactments of congress; that all contracts previously made between them were suspended; and that the courts of each belligerent were closed to the citizens of the other.
"Statutes of limitation, in fixing a period within which rights of action must be asserted, proceed upon the principle that the courts of the country where the person to be prosecuted resides, or the property to be reached is situated, are open during the prescribed period to the suitor. The principle of public law which closes the courts of a country to a public enemy during war, renders compliance by him with such a statute impossible. As is well said in the recent case of Semmes v. Hartford Insurance Company (13 Wall. 160): 'The law imposes the limitation and the law imposes the disability. It is nothing, therefore, but a necessary legal logic that the one period should be taken from the other.' " Brown v. Hiatt, 82 U. S. (15 Wall.) 177, 21 L. ed. 128.
See, The Effect of War on the Operation of Statutes of Limitation, by Charles Noble Gregory, 28 Harvard Law Review, 673.
This rule is applied to wars between different nations;4 and in the United States the Civil War was recognized as a war with a de facto belligerent in the sense that the period of limitations was suspended during its continuance.5 For the purpose of determining whether or not the Statute of Limitations has run, the courts of the United States will deduct the time during which the Civil War lasted from the time which elapsed between the maturity of the obligation and the time of commencing action.6 While in the greater number of cases the creditor was domiciled in a state which adhered to the Union, and the debtor was domiciled in a state which adhered to the Confederacy, the application of the rule was not limited to eases of this sort, and it was held that the Statute of Limitations does not run in favor of a debtor who is a citizen of a state which adhered to the Union and who is domiciled therein, as against a creditor who was a citizen of a state which adhered to the Confederacy, and who was domiciled therein during the existence of the Civil War.7 For the purpose of determining the suspension of the Statute of Limitations, the Civil War was held to begin as to the state in which the creditor resided, with the proclamation of the President declaring a state of war to exist in such state, and it was held to end with the proclamation of the President declaring that peace existed.8 For the purpose of determining the amount of time to be deducted from the period between the maturity of the debt and an action thereon in order to determine whether limitations has run or not, the Civil War will be held as against a Virginia creditor to have begun with the President's proclamation of an intended blockade of its ports, and it will be held to have ended with the President's proclamation of the restoration of peace.9
4 Hopkirk v. Bell, 7 U. S. (3 Cranch) 464, 2 L. ed. 497; Robson v. Wall, 2 Nott & M'C. (S. Car.) 497, 10 Am. Dec. 623.
5 United States. Hanger v. Abbott, 73 U. 8. (6 Wall.) 532, 18 L. ed. 939; Brown v. Hiatt, 82 U. S. (15 Wall.) 177, 21 L. ed. 128; Bird v. Louisiana State Bank, 93 U. S. 96, 23 L. ed. 818.
Arkansas. Williamson v. McCrary, 83 Ark. 470.
Illinois. Mixer v. Sibley, 63 III. 61.
Indiana. Perkins v. Sogers, 35 Ind. 124, 9 Am. Rep. 689.
Kentucky. Selden v. Preston, 74 Ky. (11 Bush) 191.
Missouri. McMerty v. Morrison, 68 Mo. 140.
Wisconsin. Ahnert v. Zaun, 40 Wis. 622.
6 Hanger v. Abbott, 73 U. S. (6 Wall.) 532, 18 L. ed. 939.
7 Brown v. Hiatt, 82 U. S. (15 Wall.) 177, 21 L. ed. 128; Perkins v. Rogers, 35 Ind. 124, 9 Am. Rep. 639.
8 Perkins v. Rogers, 35 Ind. 124, 9 Am. Rep. 639.
9 Brown v. Hiatt, 82 U. S. (15 Wall.) 177, 21 L. ed. 128.
Since the rule that war suspends the operation of the Statute of Limitations as between alien enemies is based upon the inability of the alien enemy plaintiff to bring an action in the courts in which he can get jurisdiction over the debtor, the rule has no application where at the outbreak of the war the creditor was a citizen of a state which adhered to the Union, although he voluntarily left such state and withdrew to a state which adhered to the Confederacy.10
The courts of England held that the Civil War of England, in the first half of the seventeenth century, did not have this effect;11 but this result was possibly reached because the English courts took a different theory of the nature of that civil war from the theory which the United States courts took of the Civil War in the United States. The latter was an attempt of a part of the United States to set up an independent government. The former was a contest between two factions for the control of the English government ; neither of the factions attempting to set up a permanent independent government over a part of England, and neither fac-tion contemplating secession.
While statutes which fix the period within which appeals may be taken, or proceedings in error may be instituted, are not ordinarily regarded as statutes of limitation, and while the operation of such statutes can not ordinarily be waived, the effect of war upon such statutes is much the same as its effect upon the ordinary statutes of limitation;12 and the period of the war will be deducted from the period which has elapsed between the time at which such appellate remedy could have been sought and the time at which it was in fact sought.13
A stipulation in a contract restricting the time within which an action may be brought, is not suspended, but is entirely discharged by the outbreak of war which prevents the plaintiff from bringing an action in the courts in which he can obtain jurisdiction over the person of the debtor within the time fixed by the contract 14 If the action upon such a contract is brought within the period fixed by the Statute of Limitations as affected by the outbreak of the war, the fact that the period between the accrual of the cause of action and the outbreak of the war, together with the period between the outbreak of the war and the time at which the action was instituted, when added together, exceed the period fixed by such stipulation in the contract, does not prevent recovery thereon.15
10 O'Neal v. Boone, 53 III. 35; Hall v. Connecticut Mutual Life Ins. Co., 68 III. 357.
11 Weller v. Prideux, 1 Keb. 157; Hall v. Wybourn, 2 Salk. 420.
12 The Protector, 76 U. S. (9 Wall.) 687, 19 L. ed. 812.
13 The Protector, 76 U. S. (9 Wall.) 687, 19 L ed. 812.
14 Semmea v. Hartford Insurance Co., 80 U. S. (13 Wall) 158, 20 L. ed. 490.
Since a presumption of payment is at most only a prima facie inference, it may be rebutted by showing the existence of war which prevented the creditor from maintaining an action against the debtor in the courts of the country in which the latter was domiciled and in which service of process could have been obtained upon him.16