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Hanger v. Abbott

Supreme Court of the United States

April 6, 1868, Decided; December 1867 Term

No Number in Original


 [*533]   [**940]  Mr. Justice CLIFFORD delivered the opinion of the court.

The declaration was in assumpsit, and the plaintiffs alleged that the defendant, on the tenth day of April, 1865, was indebted to them for divers goods, wares, and merchandise, and also for money had and received, in the sum of ten thousand dollars. Defendant appeared and pleaded two pleas in answer to the declaration:

(1) That he never promised as the plaintiffs have alleged.

(2) That the cause of action did nto accrue at any time within three years next before the commencement of the suit.

 [**941]  Issue was joined by the plaintiffs on the first plea, and in answer to the second, they filed seven replications, but particular reference need only be made to the fifth and sixth of the series.

Substance of the fifth replication was, that the defendant, from the sixth day of May, 1861, to the first day of January,  [***3]   [*534]  1865, was an actual resident of Arkansas, and that the plaintiffs were, at the same time, actual residents of New Hampshire, and that, during the whole of that period, they were prevented, by reason of resistance to the execution of the Federal laws, and the interruption of the ordinary course of judicial proceedings, in the former State, from instituting their action, and from having the defendant served with proper process; and so they aver that they did commence their suit within three years next before the cause of action accrued.

Sixth replication alleges, that the parties respectively had been, for more than three years before the commencement of the suit, actual residents of their respective States, and that the cause of action accrued before the twenty-fifth day of October, 1859, and that after the same had so accrued, to wit, on the sixth day of May, 1861, all the lawful courts of the State where the defendant resided were closed by reason of the insurrection and rebellion which then and there arose against the lawful authority of the United States; that the courts so remained closed from that day to the first day of January, 1865, and so the plaintiffs say that [***4]  the period during which the courts were not open for the reasons stated, should not be deemed and taken as any part of the three years limitation, as pleaded; and they in fact say that they did commence their suit within three years next before the cause of action accrued.

Demurrers were filed by the defendant to the replications, and the court gave judgment for the plaintiffs in the sum of mine thousand four hundred eighty-three dollars and twenty-six cents damages and costs of suit; whereupon the defendant sued out this writ of error.

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73 U.S. 532 *; 18 L. Ed. 939 **; 1867 U.S. LEXIS 1003 ***; 6 Wall. 532


Prior History:  [***1]  ERROR to the Circuit Court for the Eastern District of Arkansas.

J. & E. Abbott, of New Hampshire, sued Hanger, of Arkansas, in assumpsit. The latter pleaded the statute of limitations of Arkansas, which limits such action to three years. The former replied the rebellion, which broke out after the cause of action accrued, and closed for more than three years all lawful courts. On demurrer, and judgment against it, and error to this court, the question here was, simply, whether the time during which the courts in Arkansas were closed on account of the rebellion, was to be excluded from the computation of time fixed by the Arkansas statute of limitations within which suits on contracts were to be brought, there being no exception by the terms of the statute itself for any such case.


enemy, confiscated, suspended, courts, restoration, international law, belligerents, intercourse, annulled, accrued, revives, statute of limitations, court of justice, three year, insurrection, replications, contracts

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