FEDERAL REPORTER. and others v. ApPELL.
(Circuit Ouurt, D. Uolorado.
June 23, lS83.)
STATUTES OF LnHTATTONS.
S alUle; of Ii'llltatlon, are statutes of repose, and are enacted upon the pre'4 sump' ion that one ha-l,ng a wpll-founc1ed claim wdl not delay enforcing it beyon:i a reasonable time If he has the power to sue. Such reasonable tune is, therefore, dedned and allowed. But the basis of the presumption is gone Whenever the ability to reA,)!·t to the court has been tak ..n away, and in such a case the cre litor ha; not th· time within wh,ch to lJrtng his suit that thc statute contemplated he shonld have.
SAMr;-BANK1UPTCY -DEL \Y IN ApPLYING FOR DrSCIIARGE.
ngs in lla'lkru )ley amonnt to an injnnction against any proeccdings agamAt the b to his contracts III the courts, but if he delays for aJ.1 unreason,allle ti'lle to apply for his discharge, the right of action against hIm upon IllS contraets or d""ts. which was su'pe,ded by the commencement of proceed ngs in h rnluupV,y, revIve'. and durin,g the time that the right of acwas sllspl'll'le.i I'y the lJankrup.cy the statute of limitations will not run in IllS favur.
MCCRARY, J., (nral1,y.) This is an action at law upon certain promnotes, and also, I b.:llieve, upon an open account. There is a demurrer to the complaint, which raise8 the qnestion whether the action is barred by the statute of limitations of this state. The defendant, Appell, was adjudlCatetl bankrupt in the state of Pennsylvania some years AgO, and the proceedings in bankruptcy were continued for some years, and are probably still pending; but Appell has never been discharged. The theory of th;s suit is that, having delayed for an nnreasonable time to apply fill' his discharge, tile right of action against him npon these neuts, which \Va" snspelJiled by the commenl'ement of proceedings in bankruptcy, has revivell; aud the question here is whether, during the time that the right of action was suspended by the bankruptcy proceedings, the statute of limitations of the state of Colorado continued to run in favor of the bankrupt; or, in other words. does the bankruptcy of the dehtor SU8iJeud the running of the statute of limitations in his f,tvor? That it sllspend:> the right to sue, by the very tenns of the bankrupt act, i:l not disputed. After the commencement of proceedings in bankruptcy ag Lilht the deb;or, and afLer an adjudication in bankt-uptcy, no suit. can be br,mght against him in any court; certainly, not without the consent of tue bani;:ruptcy court. It amounts, in other word:>, to an any proceedings against the bankrupt to enforce 11:8 CtHltrlCts in the courts of the conntry. If he is not discharge.!, th'JIl thJ action revive" after the proceedings in bankruptcy are ende.!. The old rule up:1ll this snhject was very strict. and many authorities have been cited wilicll cle.Ldy hold that if the statute of limitations hegins to run. will stop its running except something that is express'y pl'on.btl in .the statute itself; and it was formerly
held that even a state of war was not sufficient; that an injunction against the creditor from bringing a suit was not sufficient to suspend the statute, and that it continued to run notwithstanding these things. That rule will be found laid down in Angell & Ames on Limitations, and I think in some other standard authorities. But the more modern rule is otherwise. It has been settled now, by the decisions of the supreme court of the United States, that there are certain exceptions to the statute of limitations other than those which are expressed in the statutes themselves. The old rule has been qualified by later and better rulings, especially in the supreme court of the United States. These later decisions hold that an exception may be allowed where a party is prevented by some superior law or public calamity, such as war, from bringing the suit. The cases growing out of the late rebellion are illustrations of this doctrine. Although none of the statutes of limitations had any exception which applied to the case of a debtor who was within the lines of the rebellion, and therefore beyond the reach of civil process, so he could not be sued, the supreme court, in a series of cases, laid down the doctrine that that was an exception which was created by the necessities of the case. And this exception has been established by the case of Bailey v. Glover, 21 Wall. 342. That is a case which arose under the bankrupt act of 1867, which has a limitation clause embodied in its second section. 'rhat clause provides tuat no suit at law or in equity shall in any case be maintained, etc., "unless the same shall be brought within two years from the time the cause of action accrued." 'rhat is as broad, as sweeping, and comprehensive as any statute of limitations can be made. It applies to suits both in law and in equity; it applies to all classes of suits, and declares that no suit shall be maintained unless it be brought within two years. The question arose whether, under that statute, courts would create an except on in the case of concealed fraud. In an elaborate opinion by Mr. Justice MILLER, the supreme court laid down the rule that this was an exception, notwithstanding the clear and comprehensive terms of the statute itself. The ground upon which these later rulings proceeds is well stated in a sentence which I will read from the case of U. S. v. Wiley, 11 Wall. 513:
"Stat11tes of limitations are inrleet! statute::; of repose. They are enacted npon the presumption that one having a well-founded claim will not dPiay enforcing it beyond a reasonable time if he has the power to sue. Snch reasonaIJle tHne is. therefore, definetl and allowed. But the bnsis of the presumpiy whenever the ability to 1"eSort to the has been tnken awa/I. In snch a case the creditor has not the time within which to bring hi:i suit that the statute contemplated he should have."
I think this case falls within that doctrine. The right to sue was undoubtedly suspended during the pendency of proceedings in bankruptcy, and to say that the statute continued to run, would be to Bay
,FEDEnAL'nEPORTER. ' that' the 'plaintiff is depri"ved of his right to sue, without the slightest' fault on his part.. : The demurrer to the complaint is overruled. Defendant to answer in 30 days. .
RAND and others. 1
(District Uourt, E. D. Pennsylvania. :May 24, 1883.)
NEu'rnALITy-VIOI,ATJON OF-CO:KSTTIUCTJON OF SECTION
The captain and mate of a United States vessel, who, lw('wing the character of their cargo and its intended purpose, transported arms fmm a port within the United States to a foreign port, together with men and stores, to be used in a military expedition against a people at peace with the United States, are gnilty of violating section 5286 of the Hevised S t a t u t e s . :
This was an indictment against Augustus C. Rand and Thomas Pender, the captain and mate of the steamer Tropic, for the violation of section 5286 of the Revised Statutes, relating to military expeditions against people at peQ.cewith the United States. The facts are set forth in the charge of the court. H. P. Brown, Asst. Dist. Atty., and J. K. Valcntinc, Dist. Atty., for the United States. , Alfrcd J: Arthur 2l]oore, for defendants. BUTLER, J., (charging jury.) On the fifteenth day of 'March last the ship Tropic sailed from this pott in command of the defendants-the one as captain and the other first mate-with a cargo of arms and military stores, consisting of rifles, muskets, cannon, cutlasses, am- . munition, and uniforms. She proceeded direct to Inagua, where she arrived on the twenty-second of the same month, and during the· night and the next day , took on board a large number of men, who' were ·Foon after put into uniforms, drilled, and prepared for active' military service. She then proceeded to Miragoane, Hayti, where the, men were disembarked, and an attack made upon the representatives' of t11e Haytian government, there in commanel, and t11e town captured. , During the attack the vessel rode outside the harbor, and immediatelyafter ran in aneUanded her stores. On the return of the ship to this port the defendants were arrested, and are now on trial for: an alleged violation of a statute of the United States, which reads as' follows: . ' . ' :',
. ·... r)·:· "..
. '\ Every person,who, witllin the jnrisdiCtion of thiJUl'lited Stares, means for, aily military ex- o begins or sets 011 foot, or provides or pedition or enterprise, to be carried on from thence against the territory or dO:llini?l1S of pr!nce or state, COl0I1y, dishlct;or people, with'wh6m the , '.. are .- .;peace, sIJallbe :- - '"' gUilty of a high rni"demeanor.:':: .- " . . . ,. .- .