Perkins v. Rogers.

a personal war, until Congress assembled, and acted upon this state of things. Down to this period, the only eneemy recognized by the government was the persons engaged in the rebellion, all others were peaceable citizens, entitled to all the privileges of citizens under the constitution. Certainly it cannot rightfully be said that the Pesident has the power to convert a loyal citizen into a belligerent enemy, or confiscate his property as enemy's property.

Congress assembled on the call for an extra session on the 4th day of July, 1861. And among the first acts passed was one in which the President was authorized by proclamation to interdict all trade and intercourse between all inhabitants of states in insurrection and the rest of the United States, subjecting vessels and cargoes to capture and condemnation as prizes, and also to direct the capture of any ship or vessel, belonging in whole or in part to any inhabitant of a state whose inhabitants are declared by the proclamation to be in a state of insurrection, found at sea or in any part of the rest of the United States. Act of Congress of 13th of July, 1861, secs. 5 and 6. The fourth section also authorized the President to close any port in a collection district, obstructed so that the revenue could not be collected; and provided for the capture and condemnation of any vessel attempting

to enter.

"The President's proclamation was issued on the 16th of August following, and embraced Georgia, North and South Carolina, part of Virginia, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida.

"This act of Congress, we think, recognized a state of civil war between the government and the confederate states, and made it territorial."

We next proceed to show that the opinion of the minority of the Supreme Court, in the above case, is now recognized as the law. GILES, J., in Jackson Insurance Company v. Stewart, in the Circuit Court of the United States, for the State of Maryland, says: "On the 7th of September, 1861, this court decided that the President of the United States

Perkins v. Rogers.

had the right, by proclamation, to recognize the existence of a state of civil war; and that the war, from and after the date of such proclamation, existed between the states mentioned in the proclamation and the rest of the United States. Also, that the late war, when so declared and recognized by President's Proclamation, became a civil war, and imposed upon both the belligerents all the rights and consequences of such a war. This was one of the earliest decisions in regard to our late civil war, and the principles there enunciated have since been fully confirmed by the Supreme Court of the United States in the Prize Cases; 2 Black, 635.

"The justices of that court were unanimons as to all the consequences which resulted from a state of civil war, but the four dissenting judges were of opinion that the war began only after the proclamation of the President, of August 16th, 1861, passed in pursuance of the power conferred upon him by the Act of July 13th, 1861.

"As regards to the State of Tennessee, there can be no doubt that war existed in consequence of the proclamation of the President, of August 16th, 1861, and not before, as that State was not included in the previous proclamations." 6 Amer. Law Reg. N. S. 732.

TREAT, J., in United States v. One Hundred Barrels of Cement, in United States District Court, Eastern District of Missouri, says, "All commercial intercourse with Tennessee was interdicted from the date of the President's proclamation of August 16th, 1861, except so far as the President had relaxed, or might relax, such interdict, with respect to any particular part of the State, or with respect to specified persons." Again, he says, "The Act of 1861 and the proclamation recognize this as an organized insurrection, extending over the states and parts of states named." 3 Amer. Law Reg. N. S. 735.

The court of Chancery of Louisville, Kentucky, in the case of Allen v. Russell, 3 Amer. Law Reg. N. s. 361, held that the act of Congress of 13th of July, 1861, and the President's Proclamation of 16th of August, 1861,

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recognized an insurrection amounting to civil war as existing.

The Supreme Court of the United States, at the December term, 1870, in the case of Dean v. Nelson, reported in American Law Times, held that the late rebellion became a civil war by the proclamation of the President, of the 16th of August, 1861, issued in pursuance of the Act of Congress of July 13th, 1861. The court say, "The war soon began to rage with severity, and all intercourse between the states in rebellion and the other states of the Union was not only interrupted, but was prohibited by President Lincoln's proclamation of August 16th, 1861, made in pursuance of the act of Congress of the 13th of July previous." 10 Wall. 158.

It was held by the Circuit Court of the United States, in the District of Oregon, in the case of Chapelle v. Olney, that the late rebellion did not become a civil war until the 16th of August, 1861. The case was decided at the December term, 1870, and is published in American Law Times.

DEADY, J., after quoting the fifth section of the Act of Congress of July 13th, 1861, says, "This act was passed with direct reference to the rebellion or insurrection then being organized and maintained in certain states (including Arkansas), against the authority and government of the United States. In pursuance of this act, the President, on August 16th, 1861, by proclamation, declared the inhabitants of certain states, including Arkansas, to be in a state of insurrection against the United States, excepting, among others, the inhabitants of such parts of such states as may maintain a loyal adhesion to the Constitution and Union, or may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of such insurgents. "From and after the date of the proclamation of August 16th, 1861, all commercial intercourse was prohibited between the inhabitants of Arkansas and the people of the United States."

We are clearly of the opinion, from the above decisions, and our understanding and construction of the Constitution

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of the United States, that the late rebellion did not become. a civil war until it was made such by the proclamation of the President, on the 16th of August, 1861, made in pursuance of the act of Congress of the 13th of July, 1861, and that prior to that date, commercial intercourse between the citizens of Louisiana and the State of Indiana was lawful and would constitute a legal and valid consideration. As all the dealings between the parties to this action occurred prior to that date, it necessarily results that the cause of action in this. case was not rendered unlawful and invalid by reason of a state of war.

But suppose that the opinion of the majority of the court in the Prize Cases was correct, and is still recognized as the law, how would that benefit the appellant? According to that decision, the rebellion did not become a civil war until the 27th of April, 1861, when the President issued his first proclamation of blockade. The last item in account of plaintiff was dated 15th of April, for money paid on draft of defendant. This payment was made before commercial intercourse became unlawful, under the above decision. It would deprive the appellant of the benefit of his corn received and credited on the 27th day of April, the day on which the proclamation was issued. Nor would the opinion of the majority of the court affect the statute of limitations in this case. Under the opinion of the majority of the court, the statute commenced on the 27th of April, 1861, while under the opinion of the minority of the court, it did not commence to run until the 16th of August, 1861. It is well settled by an unbroken line of decisions, both in England and in this country, that whenever a state of war existed, the debt and remedy were alike suspended-that the limitation ceased to run, and that the suspension of the debt and remedy did not cease, and the statute did not again commence to run, until the full restoration of peace, when the debt and remedy were fully restored.

But it is also maintained by the appellant that the court erred in overruling the demurrer to the complaint, because it affirm

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atively appeared on the face of the complaint that the cause of action had not accrued within six years next before the commencement of the action.

The rule was formerly well settled, that length of time was a proper ground for plea, and not for demurrer; but the very decided tendency of the later decisions is to hold, "that when the complaint discloses the fact that the plaintiff's right of action is barred by the statute of limitations, advantage may be taken of the bar by demurrer." This principle is discussed in the following cases: Sturges v. Burton, 8 Ohio St. 215; McKinney v. McKinney, 8 Ohio St. 423; Chiles v. Drake, 2 Met. Ky. 146; Humbert v. Trinity Church, 7 Paige, 195; 24 Wend. 587; Angell on Lim., 4th ed., sec. 29, p. 308; Van Hook v. Whitlock, 7 Paige, 375; Story Eq. Pl., secs. 378, 389, 390; Wisner v. Barnet, 4 Wash. C. C. 631; Muir v. Trustees, &c., 3 Barb. Ch. 477; Dunlap v. Gibbs, 4 Yerg. 94; I Dan. Ch. Pr. 584; Deloraine v. Browne, 3 Bro. Ch. C. 633; Thomas v. Harvie's Heirs, 10 Wheat. 146; Elmendorf v. Taylor, 10 Wheat. 152; Miller v. M'Intyre, 6 Pet. 61; Chapelle v. Olney, Oregon C. C., Amer. Law Times.

But the law seems to be settled otherwise in this and many of the other states. In Sipe v. Sipe, 14 Ind. 477, the court say, "The time laid in the complaint should bring the case within the statute of limitations, and the proof should, perhaps, show that the acts complained of preceded the grant of letters of administration."

In Bowman v. Mallory, 14 Ind. 424, the court say that the statute of limitations should be pleaded, and refer to Perkins' Pr. 226.

In Matlock v. Todd, 25 Ind. 128, the court say, "But we do not decide the question, for the reason that it is not properly before us. It is raised on a demurrer to the complaint, and it has been held by this court, that in suits at law, to make the statute availing, it should be pleaded. Bowman v. Mallory, 14 Ind. 424."

In Hanna, Adm'r v. The Jeffersonville R. R. Co., 32 Ind.