21 La. Ann. 67 | La. | 1869
Lead Opinion
The plaintiff in this action alleges that the defendant Charles D. Stewart and eight others in April, 1802, destroyed by fire two hundred and seventy-five hales of cotton, tho property oi plaintiff, which he avers were worth eighty-five thousand dollars. He prays judgment in solido against the defendants for that sum with interest and costs.
Tho defendants .filed separate answers. In the court below, the case was continued as to all the defendants except Stewart, between whom and the plaintiff the present controversy lies. Judgment was rendered in favor of the plaintiff for twelve thousand dollars, and the defendant appealed.
The defendant’s answer denies that the cotton belonging to plaintiff was burned at the time specified; and avers that if it were, it was burned by the militia of Pointe Coupee parish, acting under orders from the regularly constituted authorities of tho State, and specifies as constituting those authorities the Governor, in his capacity of commander
The issues made in this case are—
First — Is the action prescribed?
Second. — Was the authority under which the defendant acted a lawful authority?
] Third. — Did he act under compulsion?
And first as to the question of prescription.
The learned and able opinion delivered in this ease by the judge a quo enables us without difficulty to arrive at a satisfactory conclusion under this head. It is shown that from the time of the capture of New Orleans by the national forces in April, 1862, a continuous state of ■alarm and agitation prevailed in the parish of Pointe Coupee and the adjacent country, during the remainder of the war. Especially from the beginning of the year 1863 to the spring of 1865, the parish of Pointe Coupee was scourged by alternate raids of the military forces of both the hostile parties. Battles and skirmishes were frequent; while that state of affairs continued the people were panic stricken from the danger with which they were surrounded. Perturbation and terror wore in the ascendant. In that district of country at that time the Ciceronian maxim “ Silent leges inter anna,” was fully illustrated. It is' shown that during the year 1862, after the plaintiff’s cause of action arose, there was only one term of cora-t held in the parish, and that that was a mere formal opening of the court without the purpose of transacting business. That there was no court held during the years 1863 and 1864; and that the first court held afterwards was at the December term, 1865, under the Constitution of 1864; there having been but the one court, and that a mere nominal one, from the twenty-ninth of April, 1862, to the first Monday of December, 1865. It is shown that the defendant, shortly after the burning of the plaintiff’s cotton, removed to Texas, where he remained three years. The petition in this case was filed on the third day of January, 1866, and the citation served on the fourteenth of March of the same year. But were the officers and the judge of that court, whoso sittings were of such rare occurrence, officials deriving their commissions and authority from a legal source? It is contended that the contrary has not been proved, and admitting
We think the evidence fully warrants us to determine that in this case there was a suspension of prescription under the equitable principle invoked by the plaintiff, contra non valentón agere non currit pre-scrip lio.
It is in consonance with the spirit of our laws and the jurisprudence of the State to recognize the rule where facts obviously show the equity of its admission. 11 An. p. 730 and cases there cited.
Second. — Was the authority under which the defendant acted a lawful authority ?
• This inquiry, seemingly, though we apprehend not necessarily, involves the consideration of the much mooted question, did the late Confederate States constitute a government defacto?
We regard this question rather as a political than a legal one. It does not in our view come properly within the range of judicial action. Courts should be governed in questions of this character by the authoritative declarations of the national government. Authorities are not wanting to sustain this opinion. But, it is urged upon us that the action of the general government during the war towards the States lately in rebellion, was such as to recognize them as a belligerent power, and as having a government de facto; and that they have been so acknowledged by other powers. This subject has been pressed upon our consideration with much ability and zeal in this case, as well as in others, and we deem it proper to examine it.
In entering unwillingly upon this task, we shall first inquire into the character of this alleged recognition of the late Confederate States as a belligerent power by the- United States government. When inde
Conceding, however, that the Confederate States were a belligerent power, did that constitute them a government defacto? Certainly not. It is contended nevertheless that its status was that of a de facto government because the insurgent. States established a government and exercised jurisdiction over the country which they embraced. In ex-
What then is a government de facto?
A government defacto arises only where the established government has been subverted by successful rebellion, and the new government - exercises undisputed sway for the time being over the entire country j or, where the people of any portion of a country subject to the same government, throw off their allegiance to that government and establish one of their own; and show, not only that they have established a government, but also their ability to maintain it. This principle is founded upon reason and the fitness of things, and is therefore a rule of international law'. The recognition of the government of a revolted State or province by a neutral power, is casus belli for the sovereign claiming dominion over the revolted country, if such recognition precedes the exhibition by the newly formed government of its ability to maintain its independence. Where recognitions of revolted States have occurred without this manifestation of the ability to sustain their new condition, they have been simply interventions with the intention of war.
During the cruel and fanatical war waged against the Netherlands by Philip the Second of Spain, England recognized their independence for the purpose of becoming a party to the war ; fearing that if the Netherlands were subdued, both the government and church of England would be in danger from the power and fanaticism of Philip. What lias been the uniform usage of nations on the subject of recognition! Numerous examples might be given. A few will suffice. When in 1778, Prance entered into treaties of alliance and commerce with the British North American colonies,-then in a state of revolution, she adopted these measures upon the express declaration that “the people of these colonies were in the public possession of tlioir independence, and above all that their former sovereign had shown by long and painful effort the impossibility of reducing them to obedience.”
The uniform course of the United States towards the various provinces of Spain on the American continent, which, from time to time, within the last half century, have been in a state of revolt, has been scrupulously to abstain from the recognition of any of them as de facto governments until Spain herself had abandoned the contest, or it became morally certain that her power could never be reinstated.
Now, at what time did the insurrectionary States, in the late unhappy conflict, exhibit to the world their ability to maintain their so called government against the gigantic power of the United States? If they" never did this, the claim set up for them as a defacto government must fail; Aside horn the fact of their inability to maintain the government they set up being proved by the actual failure, it may justly be said that the result of the conflict was apparent from the beginning. What are the facts 2 The Southern States revolted and established.a govern-
In juxtaposition with this state of things, it was seen that upon the white basis the population of the loyal States was more than fourfold that of the Confederate States. From that population the Federal forces were not only continually recruited, but continually increased. Abounding in manufactures of every kind, with producing capacities unexampled in the history of any people; with money and credit commensurate with the exigencies of the cxisis, the armies of the Federal government were better clothed, better fed, better armed and better paid, than the same vast nxunber of men going forth to war, have ever been, in ancient or modern days. With these facts glaringly before the eyes of the world, can it be said that the Confederate States at any time exhibited their ability to maintain the government they established?
Third. — The third inquiry is, did the defendant act under compulsion? The evidence sufficiently discloses that he was a willing and ardent soldier in the war against king cotton. We think he rendered willing rather than compulsory service. But it is no where shown by the record that he was actuated by malice or ill feeling against the plaintiff. Jt is true that ho acted in the matter of cotton burning conjointly with the other defendants UDder a militia officer; but we are rather inclined to think that the militia was a kind of machinery introduced with the view of giving an apparent legalization to the predetermined acts of those who advocated the ruinous policy of destroying cotton. But it is contended that the skirts of the defendant are not free from the flame and smoke of the burning staple. One witness says that the plaintiff set fire to some of his own cotton. It is shown that he caused
There is another feature in these transactions worthy of notice. The proclamation of Governor Moore directed the burning of all cotton within the limits of the State, which was in danger of falling into the hands of the Federal forces, and provided that where it could be removed out of their reach, that it should be done. TMs clothed the militia officers with a margin of discretion, which (as they acknowledged the legality of the order) it was their duty to exercise with propriety and judgment. It is not shown by the record that there was danger at all of the capture of cotton by the Federáis; on the contrary, it appears that when their vessels of war went up the river, none of the cotton remaining was taken by them! Neither is it shown that at the time the plaintiff’s cotton Was burned there was immediate and imminent danger of its capture; so that the plaintiff was deprived forcibly of the benefit of the proclamation, which gave him the privilege of removing his cotton if lie were able to do so. The party acting under the illegal authority by which defendant seeks to shield himself, certainly appears not to have exercised a sound discretion in their proceedings, carried on as they were, under mistaken zeal and remarkable delusion.
This case was tried in the court below before a jury. The verdict was against the defendant. We find nothing in our review of the case that,authorizes us to alter it.
It is therefore ordered, adjudged and decreed that the judgment oi the District Court be affirmed with costs.
Rehearing
MEMORANDUM OR AUTHORITIES CITED BY E. T. MERRICK ON ARGUMENT — on Rehearing.
The charge of the Judge is correct and is good law. C. C. 2295, 229G. If it wore calculated to mislead, which it is not, still a new trial ought not to bo granted because the facts warrant the verdict. Hen- ' nen’s Dig. pages 97, 99; Nos. 1, 11, 35, 1G, 24, 27, 32, 35, 37.
Governor Moore had no authority to authorize any one or justify any one in burning the cotton of the people. The Constitution of 1852 under which he was acting gave him no such power. Defendant filed a justification. His warrant fails him. His ansuisi1 ealls it a rebellion.
In a lawful government “ all instructions from tho executive which are not supported by law are illegal, aud no inferior court is bound by them.” Brigktly’s (New) United States Digest of Decisions, p. 144. Sec. 86 and cases cited.
Prescription, 4 Sarigney, p. 420, Berlin Ed.
(2) “ The u-tile temp ús is only applicable to such periods of time which are established by general laws and not those established by tho will of individuals as where the Judge has fixed a delay in the progress of a suit.”
(3) “The utile tempns does not avail in all the cases which we have here mentioned but only where the prescribed period of time is a year or less, never when it has reference to more than a year.
“ This rule does not need a.uy proof, for only two prescriptions, a year and one hundred days come under it and for both it is incontestable.” See Mackelday, Brussels Ed., p. 102, p. 111. See Stat. at Large, 12 vol. 590, 1262.
Quia tractabus de uiilibus diélms frequeue est videamus quid sit experi-undi potestatem Habere. 1, 44, 3.
“Because it is frequently discussed as to what are useful days no will see what is meant by having the power to prosecute one’s rights.
It is in the first place necessary that the person shall have tho ability to institute a suit/«oirías agendi. It is not sufficient that the defendant presents himself, or has some one in tho place who shall be capable of defending him; there must not be any cause which prevents the plaintiff from instituting his action. (Nulla idcona causa, imjpediater e.rperirej. Thus, if he is a prisoner or with the enemy, or absent on account of the republic, or in bonds (in vincidis) or if he is detained in another place, or in another country (regione) by bad weather (tempertate), so that he can neither come or send a mandate to another to sue for him, he is considered as not having the ability to act (expuramdi potestatem non ItabetJ. It is clear that he who is sick, but still able to employ another in his case has the power to act. No one will doubt that a person has not the power of acting who cannot be heard before the pretor. Those days only are considered useful on which tho pretor renders justice.” Dig. Lex. 1. Lib. 44. Pot. 3.
Rehearing
ON REHEARING.
The question to be considered first, is that raised by the plea of prescription.
The acts complained of were committed on the twenty-ninth of April, 1862; the citations in this.suit were served on thirteenth and fourteenth, of March, 1866. The prescription of one year, barring actions resulting from offenses or quasi offenses, had accrued, therefore, unless it was interrupted or suspended. It is not pretended that there was any interruption of prescription. .
But it is alleged that the proscription was suspended from the date of tho commission of the act which injured the plaintiff, until thefifteenth of June, 1865, by reason of the existence of war and civil commotion in tho country, and the impossibility to sue tho defendants before the reorganization of the courts, after tho cessation of hostilities, and the maxim, “ contra non valenlem agere non currit prescription is invoked.
The exceptions are enumerated in the Code. The existence of a state of w.ar is not among the exceptions established by lato, neither is the inability to sue, except in a few instances expressly mentioned. C. C. 2512; 3488 et seq.
It is manifest, therefore, that the rule “contra non válentem agoré non eurrit preseriptio” is not recognized in the Code, except in cases expressly mentioned.
But, notwithstanding the plain and positive provisions of the Code, our predecessors have, in some instances, recognized the maxim, and under its equitable rule havre relieved parties against whom prescription was pleaded. As might have been expected when Judges depart from the plain provisions of Avritten law to decide according to the equity or necessity of each case, conflicting opinions have been the result. And so long as courts continue to act under the notion, that their equity poAvers authorize them to correct, control, moderate or supersede the laAV, with the view of enforcing rights which are just, great uncertainty and confusion will ensue; and as Mr. Justice Blackstone says, courts of equity “will rise above all law, either common or statute, and be most arbitrary legislators in every particular case.”
In Babel v. Pourciau, it was held that “this court has settled a different jurisprudence in regard to the proceedings in actions on bills of exchange and notes payable to bearer or order, etc., and has held that the maxim 1 contra non válentem’ resting solely on jurisprudence cannot bo applied to such a prescription, without violating the manifest spirit and intention of express law ; that that prescription running against minors and interdicted persons, thereby indicated the policy of the larv maker, and his intention that it should be strictly enforced
Wo reiterate that the maxim cannot be applied to suspend the course of prescription against bills of exchange, notes, etc., because it is in opposition to the plain and positive provisions of the Civil Code.
But it is equally a violation of “ the manifest spirit and intention of express larv,” to permit the maxim to apply to the prescription of actions for damages, resulting from offenses and quasi offenses.
Article 3506 says: “The prescription mentioned in the preceding article, and those prescribed above in the first and second pa/ragraphs run against minors and interdicted persons, reserving, however, to them their recourse against their tutors and curators. They run also against persons residing out of the State.” .
The rule “ contra non valentem” is applicable to both classes of cases, or to neither. We think it is not applicable to either. Hatch v. Gilmore, 3 An. 510.
Our attention has been called to the opinion of the Supreme Court of the United States in the case of Hanger v. Abbott, 6 Wallace, p. 542, in which that august tribunal held, that “the rule of the present day is that debts existing prior to the war, but which made no part of the reasons for undertaking it, remain entire, and the remedies are revived with the restoration of peace.”
That this should he the rule wo believe, but that it is the rule, we doubt. And we are sustained in our view of the law by the high authority of the Supreme Court of the United States. In McElmoyle v. Cohen, 13 Peters 327, the court said: “It would bo strange if in the now well understood lights of nations to organize -their judicial tribunals according to their notions of policy, it should be conceded to them in every other respect than that of prescribing the time within which suits shall be litigated in tlioir courts. Prescription is a thing of policy, growing out of the experience of its necessity; and the time after which suits or actions shall be barred, has been from remote antiquity fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for all persons and property within its jurisdiction. This being the foundation of the right to pass statutes of prescription or limitation, may not our States, under our system, exercise this right in virtue of their sovereignty?” In McIver v. Ragan, 2 Wheaton, p. 28, it was admitted that the case was within the act of limitations of the State of Tennessee, and not within the letter of the exceptions, and Chief Justice Marshall, as the organ of the court, said: “Wherever the situation of a party was such as, in the opinion of the Legislature, to furnish a motive for excepting him from the operation of the law, the Legislature has made the exception. It would he going far for this court to add to those exceptions.”
In the case of the Bank of the State of Alabama v. Dalton, reported in 9 Howard, p. 250, the defendant was sued on the very day he moved into the State of Mississippi. The statute of limitations was pleaded in bar of the suit; and the plaintiff insisted that as the laws of Mississippi did not operate on cither plaintiff or defendant, nor on the foreign judgment, until the dag on whieh the suit was brought, no bar could be interposed, founded on the lapse of time, as none had intervened. Here, it would seem, was a case where there had been no utile iempus, and in which the maxim “contra non -valentcm a gore non carrit prescription might bo applied, if court-swore at liberty to supply it. Yet neither the Mississippi court, nor the Supremo Court of the United
“ The act itself malees no exceptimi in favor of a x>arty suing under the circumstances of these plaintiffs. So the Supreme Court of Mississippi held in the case of McClintock v. Rogers; and this is manifestly true on the face of the act. The Tegislature having made no exception, the COURTS of justice CAN make none, as this would he legislating.’'1 And after having reaffirmed what was said in McIver v. Ragan, already quoted in this opinion, the court declared “ The rule is established beyond controversy. It was so hold by the Supreme Court of New York in Troup v. Smith, 20 Johns. 33; and again in Callis v. Waddy, by the Court of Appeals of Virginia, and also in Hamilton v. Smith, by the Supremo Court of North Carolina, and in Cocke & Jack v. McGinnis, in the Supreme Court of Tennessee. Nor are we aware that, at this time, the reverse is held in any State in this Union. It is the doctrine maintained in Stowell v. Zouch, found in Plowden’s Reports 353, and not departed from, by the JEnglish courts, even in cases of civil war, when the courts of justice were closed, and no suit could be brought.” “ As the act of limitation has no exception that the plaintiff can set up, and as none can be implied by the courts of justice, * * * it is our duty to affirm the judgment.” 9 How. 250.
And Mr. Marcade commenting on article 2251 of the Napoleon Code, corresponding with article 3487 of our Civil Code, alludes to the great confusion and uncertainty which anciently existed in France on the subject of the suspension of prescription, in consequence of the application by judges and authors of the rule “ contra non valentem,” and he remarks, “Le Code a porte remede a cet etat de dioses, et prevenu tout danger de ce genre pour l’avenir, en declarant formellement, par notre article 2251, que la prescription court contre toute personne qui ne pent pas invoguer une exception estable par la loi. Ainsi c’ est desormais la loi qui sera lo seul guide a suivre; les considerations d’equite qui eussent per entrainer aujourd ’liui tel esprit et domain tel autre seront sans valeur; et toutes les fois qu’on se demandera si tel cas, a raison de sa gravite, ne doit pas etre regarde comme mettant a l’abri de la prescription, il ne s’agira, pour repondré, que de voir si ce cas ventre ou non clans Vune des exceptions posees par le Code.”
And he concurs with M. Duranton and M. Coins-Delisle in their views that war, pestilence and other cases of vis major, are expressly excluded Horn the causes which suspend prescription, by the terms of the article. Marcade Prescription, p. 150. Rev. do dr. franc, et etrang; 1847, p. 285-302. Duranton, Nos. 285, 286.
So we think. “Prescription runs against all persons, unless they are included in some exception established by law.” Art. 3487, C. C,
The Legislature of this State might have established an exception to meet the contingencies of this case, but they have not; and though tho plaintiff, and those similarly situated, may exclaim, in the language of M. Marcado “dura lex, mais il faudra toujo'urs ajoutcr, Seripta tamen.”
If our Code lias furnished us a rule, it is imperativo, even though it bo shown to be defective, and grave and weighty considerations of policy are apxicaled to in favor of another. Tho remedy is in the hands of the Legislature. 16 La. 394. '
This view of the case renders it unnecessary to notice the bill of exceptions taken to the charge of tho District Judge; and in other respects tho former opinion rendered in this case meets with our approbation.
It is therefore ordered and adjudged, that tho decree of this court, rendered ou tho twenty-fifth of February, 1867, be avoided, that the judgment of tho District Court be annulled; and that the verdict of tho jury be set aside. It is further decreed that there .be judgment in favor of tho defendants, and that the plaintiff and appellee pay the costs of both courts.