United States v. Wiley

• Decision Date: 01 December 1870
• Citation: 20 L.Ed. 211,11 Wall. 508,78 U.S. 508
• Parties: UNITED STATES v. WILEY
• Court: U.S. Supreme Court

78 U.S. 508

20 L.Ed. 211

11 Wall. 508

UNITED STATES v. WILEY.

December Term, 1870

ERROR to the Circuit Court for the District of Virginia; the suit below being one by the United States against J. F. Wiley, former marshal of the Eastern District of the State just named, upon his official bond. The case was this:

A statute of April 10th, 1806,¹ 'relating to bonds given by marshals,' enacts by its second section, that it shall be lawful in case of a breach of condition, 'for any person, persons, or body politic thereby injured, to institute a suit.' A fourth section enacts:

'That all suits on marshals' bonds . . . shall be commenced and prosecuted within six years after the right of action shall have accrued, saving nevertheless the rights of infants, feme coverts, and persons non compos mentis, so that they sue within three years after their disabilities are removed.'

In 1861 the Southern rebellion broke out. The present cause of action arose in the previous year.

Four years or more afterwards, that is to say, on the 11th of June, 1864,² Congress passed an act enacting:

'That whenever, during the existence of the present rebelhon, any action, civil or criminal, 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 for the commencement of said action——

'Or the arrest of such person; or whenever, after such action shall have accrued, such person cannot, by reason of such resistance to the execution of the laws of the United States, or such interruption of the ordinary course of judicial proceedings, be arrested, or served with process for the commencement of the action——

'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 the action.'

On the 15th of February, 1869, about nine years after the cause of action arose, this suit was brought. The defendant pleaded the statute of April 10th, 1806. A general replication was put in, with leave to offer in evidence all matters which might have been replied specially. It was agreed of record, 'that, from the 24th day of May, 1861, to the 24th day of May, 1865, the defendants were actual residents of the State of Virginia, and that, during the whole of that period, by reason of resistance to the execution of the laws of the United States and the interruption of the ordinary course of judicial proceedings in the State of Virginia, the defendants could not be served with process for the commencement of this action.'

The court below gave judgment for the marshal, and the United States brought the case here.

Mr. Akerman, Attorney-General, Mr. Bristow, Solicitor-General, and Mr. Hill, Assistant Attorney-General, for the United States, contended, 1st, that the act of the 10th April, 1806, was meant to limit suits brought by individuals on the marshal's bond, and that the limitation of six years prescribed in it did not touch the rights of the government; against which it was a general principle that limitations did not run.

2d. That however this might be, the case was covered by Hanger v. Abbott,³ and The Protector,⁴ to the effect that the time during which the courts in the lately rebellious States were closed to the opposing belligerents, was to be excluded from the computation of time fixed by the statute of limitations within which suits must be brought; that there was no reason, if the statute of limitations ran against the United States at all, why this exclusion should not be made in respect of suits brought by them as well as suits brought by their citizens.

Mr. Tazewell Taylor, contra:

The language of the act of April 10th, 1806, is general. No exception is made in favor of the government. The government could have repealed it if it had desired to. Its not doing so is evidence of its purpose to be bound by it.

Does the simple fact of war alter the case? Hanger v. Abbott, that war suspended the statutes that war supended the statutes running against citizens' claims by one citizen on another. They had no right to sue during war. The act of the government had made it criminal for them to do so. But the case with the United States was different. There was never a suspension for a moment, of the right of the United States to sue; no act of the government which was intended to prevent it from commencing an action. Moreover, if the cases just above referred to are open for any reconsideration, it is worthy of remark that it is a well-settled rule of construction in England, that the courts will not ingraft exceptions upon a general statute of limitations, merely because they stand upon as strong grounds of reason, or upon the same grounds as the exceptions, which may have been introduced into it; or because it may be thought unjust or unreasonable, that the statute should not contain them. We cite 'the great case,' as it is called by Sir William Grant, of Stowel v. Lord Zouche, in Plowden, pp. 353, 369; and Beckford v. Wade,⁵ the latter case decided upon great consideration, and after a review of the leading authorities, by Sir. W. Grant, one of the most eminent judges, and one of the ablest and soundest reasoners, that ever sat in the English Court of Chancery. Though the case of Beckford v. Wade is a different case from the one now before the court, yet in that case the master of the rolls inquires at considerable length into the reasonableness of the rule to which we have referred, and reviews some of the most respectable and weighty authorities by which it is established. His opinion seems to be in favor of the rule, and he refers to the cases of Lord Buckinghamshire v. Drury,⁶ and Stowel v. Lord Zouche, to show that infants and married women would have been bound by general statutes of limitations, unless they had been expressly excepted out of them. He further states, that absent defendants had the benefit of the statute of limitations, until a statute was passed in the reign of Queen Anne to prevent them from taking advantage of it. Surely there could not be in any case stronger reasons for excepting it from the statute, than in the case of a plaintiff who could not sue, because the debtor had absconded or chose to be out of the realm. Yet all attempts to introduce such an exception had failed, until the legislature was obliged to interfere. He refers also to the cases of Hall v. Wybourn,⁷ and Aubry v. Fortescue,⁸ with apparent approval; in which the opinion had been expressed, that even if the courts were shut up in time of war, so that no original could be served, the statute of limitations would continue to run, and certainly no cases can stand upon stronger grounds than some of the cases mentioned above, in which the courts constantly refused to make any exception.

Does the act of June 11, 1864, alter the case? That act has two branches, and in both its operation is prospective. With respect to those actions, which in the language of the act 'shall accrue,' this is palpably clear. It is clear, also, that in relation to actions, which shall have accrued, it is prospective to this extent, that although it applies to past transactions, that is to say, to causes of action which had accrued before its passage, still, even in those cases, it deducts from the time which may have elapsed since the cause of action arose, only so much of the time of the rebellion, or of the period when process could not be served, as elapsed after the passage of the act. This appears from the use of the phrases, 'cannot be,' and 'shall so be.' The act does not use the words, 'cannot have been,' but 'cannot be.' It does not say, 'shall so have been,' but who 'shall so be' beyond the reach of legal process. Both these expressions are prospective, and can only mean,...