tion of Aug. 16, 1861, declaring said State of Arkansas in a state of insurrection, and remained closed by virtue thereof until his Proclamation of Apr. 2, 1866, declaring that such insurrection had ceased; that this Proclamation and that construction of it is a matter of which the courts will take judicial notice, and that it is not competent to plead or prove, contrary to such construction, that the courts were in fact not closed, but open and ready to hear the plaintiffs' cause.

We deny that this position has any foundation whatever in law.

In the first place, it has always been held by this court that the war, in its effect to prevent the running of the law of limitations, did so by way of closing the courts, or, what is the same thing, imposing a disability to sue in them. Only as to such upon whom it had this effect, could it in any manner interfere with such laws.

Hanger v. Abbott, 6 Wall., 532, 18 L. ed. 939; Brown v. Hiatts, 15 Wall., 177, 21 L. ed. 128; Simmes v. Hartford Ins. Co., 13 Wall., 160, 20 L. ed., 491.

But, second; if, upon any ground, the Proclamation should have such effect, it is, we suggest, absolutely prohibited by the Act of Congress of June 11, 1864. That Act, by unavoidable implication, provides that the Statutes of Limitation shall not cease to run except where and between parties as to whom the courts are closed and service of process cannot be had on account of the war. And this upon the express maxim "Expressum facit cessare tacitum."

Cates v. Knight, 3 T. R., 142; Rex v. Cunningham, 5 East, 478; 2 Dwar., 712; Rex v. Woodland, 2 East, 166; Broom, Leg. Max., 183. In addition to the ancient and cemmon law authorities which we have cited to the contrary, we also refer to the following modern authorities:

is not a security within the law which authorizes securities to insist that the obligee use diligence in pursuing the principal. But the Statute of Arkansas gives a specific right to this remedy "to any person bound as security for another in any bond, bill or note," etc. And the facts alleged in the plea, which are admitted by the demurrer, certainly make him a security within that statute. Bully never had any interest in the note; and plaintiffs were not holders for value from him, nor were they holders without notice. They took the notes themselves from Rives, the principal, on a debt due from him, knowing that it was made payable to Bulls, and indorsed by him as security. The statute certainly contemplates that a party can become connected in some way as security upon a note. more fitly than in the way here resorted to? His being a security, is a matter of fact, and does not at all depend upon the form of his relation to the note. He may be security in many ways as indorser or as maker.

How

It will not do to say that a party cannot as an indorser be a security. The utmost that the law, independent of the statute, declares is, that he is not such by virtue of the relationship. And it has always been held, we believe, that he might prove himself so in fact, in order to entitle himself to the rights of a security as against the principal.

See, State Bank v. Watkins, 6 Ark. (1 Eng.), 123; Hempstead v. Watkins, 6 Ark. (1 Eng.), 317; and Rogers v. School Trustees, 46 Ill., 428; Piper v. Newcomer, 25 Iowa, 221; Pain v. Packard, 13 Johns., 174; Bradford v. Corey, 5 Barb., 461; Sisson v. Barrett, 2 N. Y., 406; Edw. Bills, 572; Bank v. Klingensmith, 7 Watts, 523.

It is true that most of these authorities refer to the makers instead of the indorsers of the note or bond. But there can be no question but that the principle is as applicable to the latter as the former.

We add an estimate of the time the Statute ran upon the claim under the pleadings in the

case:

From time the note was due, Oct. 31, 1860, to the time of granting letters on Bulls' estate, Dec. 2, 1869.. Deduct time from May 6, 1861, when the State seceded, to and including March, 1865, when a Term of Circuit Court was held (two Terms, in fact, were held in 1864)...

75; Boyd v. Titzer, 6 Cold. (Tenn.), 568; Wright v. Stockton, 5 Leigh, 161; Jones v. Whitehead, 4 Ga., 402; Towns v. Riddle, 2 Ala., 697; People v. Buster, 11 Cal., 215; Bethune v. Dozier, 10 Ga., 235; Letcher v. Yantis, 3 Dana, 162; Routon v. Lacy, 17 Mo., 399. Mr. A. H. Garland, for appellees:

1. Was the cause of action barred by the Statute of Limitations?

The Arkansas limitation to unsealed written contracts is five years. Gantt, Dig., sec.

9 1 2

3 10 25 5 2

But, moreover, in point of fact, the courts were not closed in Arkansas until Aug. 16, 1861, when the President's Proclamation declared non-intercourse. Up to and until that time, Judge Ringo held the circuit court below regularly and performed all business as usual.

2. It is claimed that an indorser of a note

Under the laws of Arkansas, where the maker of a contract dies, the general Statute of Limitations runs from maturity of the contract to the granting of administration upon his estate, when the general statute ceases to run, and the Statute of Non-Claim begins to run. Brown v. Merrick, 16 Ark., 612; Biscoe v. Madden, 17 Ark., 533.

This court has held that the war was flagrant in Arkansas from April, 1861, to April, 1866, and the courts of the United States, in contemplation of law, closed during that period; and that hence the Statutes of Limitation did not run during that time.

Batesville Institute v. Kauffman, 18 Wall., 151, 21 L. ed. 775.

i

Counting out this period, the action was not barred.

The counsel for the plaintiff in error insists that, inasmuch as both parties resided within the States in rebellion, the limitation was not suspended during the legal period of the war in Arkansas.

In Adger v. Alston, 15 Wall., 560, 21 L. ed. 235, the plaintiff below was a citizen of South Carolina and the defendant's intestate a citizen of Louisiana, and the court applied the principle settled in Hanger v. Abbott, 6 Wall., 532, 18 L. ed. 939.

In Batesville Institute v. Kauffman, supra, the plaintiff below resided in Louisiana and the defendant was domiciled in Arkansas, and the court held that the Statutes of Limitation were suspended during the period above stated. 2. The amended third plea was drawn under secs. 1, 2, ch. 157, Gould, Dig. Stats. of Ark.; same statute in Gantt, Dig. ch. 128.

The Supreme Court of Arkansas has never decided that an indorser of a bill or note was a surety under the above statute.

The indorser of a note or bill is not a surety within the meaning of this statute.

The note was dated and payable in Tennessee, and the contract of the maker governed by the laws of Tennessee. The indorsers lived in Tennessee, and could in no event be affected by an Arkansas statute.

The contract of an indorser renders him priImarily liable to the holder. He stands in the attitude of the drawer of a new bill.

Byles, Bills (marg.), 117 (top), 2, 217; 2 Pars. Bills and N., 25.

The indorser cannot, like a surety, call upon the holder of a note to proceed and collect it of the maker, for the indorser, though in the nature of a surety, is answerable upon an independent contract, and it is his duty to take up the note when dishonored. An accommodation indorser stands in the relation of a surety toward the party for whose accommodation the indorsement is made, and may recover against him the costs to which he has been subjected; but he does not thereby lose the character of an indorser as respects the holder of the note.

Edw. Bills, 293; citing Pain v. Packard, 13 Johns., 174; Trimble v. Thorne, 16 Johns.. 152; Warner v. Beardsley, 8 Wend., 194; Bradford v. Corey, 5 Barb., 461; Sisson v. Barrett, 2 N. Y., 406; Thornton v. Wynn, 12 Wheat., 183.

Mere indulgence or delay by the holder, to sue the maker, will not discharge the indorser. There is no obligation to use due diligence, as is generally the case, against a principal in order to hold a surety liable, at least where the surety calls upon the creditor to act. Byles, Bills (marg.), 193, Sharsw. Notes; Bank v. Myers, 1 Bailey, 412; Powell v. Waters, 17 Johns., 176; Worsham v. Goar, 4 Port., 441; Stafford v. Yates, 18 Johns., 327; Sterling v. Marietta Co., 11 Serg. & R., 179; State Bank v. Wilson, 1 Dev., 484; Freeman's Bank v. Rollins, 13 Me., 202; Page v. Webster, 15 Me., 244; Pierce v. Whitney, 29 Me., 188; Bank of Utica v. Ives, 17 Wend., 501; Trimble v. Thorne, 16 Johns., 152; Beebe V. West Branch Bank, 7 Watts & S., 375.

Mr. Justice Clifford delivered the opinion of the court:

Special pleas were filed in this case by the defendant, to all of which, except the second, the plaintiffs demurred, and to that they filed a replication, to which the defendant rejoined, and the plaintiffs demurred to the rejoinder. Hearing was had and the court sustained the respective demurrers of the plaintiffs, and held that they were entitled to recover. Subsequently the parties waived a jury, and the damages having been assessed by the court under the general issue, which was also pleaded by the defendant, the court gave judgment for the plaintiffs, and the defendant removed the cause here for re-examination.

Questions of importance are presented for decision, and in order to their proper solution, it becomes necessary to refer more in detail to the pleadings out of which they arise. Such of the pleas only will be referred to as are material to the two questions presented in the assignment of error. They are as follows:

1. That the cause of action did not accrue at any time within five years next before the granting of the letters of administration to the defendant.

Instead of controverting the lapse of time set forth, the plaintiffs replied as follows:

That from the first of June, 1861, to the second of April, 1866, war existed between the United States and the Confederate States, including the State where the indorser resided, and that during all that period Federal Courts in and for that State were, by reason of the war, closed, and that no process could be issued therefrom, or be served on the said parties; that the indorser died on the 15th of November, 1869, and that letters of adminis tration on his estate were granted on the 2d of December in the same year, and that counting out the period of the war, the plaintiff's cause of action did accrue within five years next before the grant of the said letters of administration.

Distinct issuable matters are certainly set forth in the replication, but the defendant filed a rejoinder to the same as follows: that the Federal Courts were closed on account of the rebellion, so that legal process could not be issued in the case, from the month of May, 1861, until the month of March, 1865, and not longer, as alleged in the plaintiff's replication.

Plaintiffs demurred to the rejoinder, and assigned for cause that it merely puts in issue a matter of public law as pleaded in the replication.

They, the plaintiffs, brought this suit against the defendant as administrator of the estate of the deceased, indorser, counting upon the following promissory note: $1,488.88.

MEMPHIS, Tenn., January 31, 1866. Nine months after date, I promise to pay to the order of John H. Bulls, fourteen hundred and eighty-eight and 88-100 dollars, at the Branch Union Bank of Tennessee of Memphis, value received. (Signed)

ROBERT E. RIVES, Walnut Plains, Ark.

(Indorsed)
JOHN H. BULLS, Walnut Plains, Ark.

2. Besides the plea of the Statute of Limitations, the defendant also pleaded that the indorsement of the note sued on was made at Walnut Plains, in Arkansas, and that the consideration for the same was a debt due from the maker to the plaintiffs, and that the note was made payable to the decedent, and was indorsed by him in blank, merely as a means of securing a debt due to the plaintiffs, and that the plaintiffs had due notice of that fact; and the defendant avers that after the note became due and payable, to wit: on the first of December in the same year, the decedent then in full life, the maker of the note, being then fully solvent and able to pay the note, by his certain notice in writing duly served, required the plaintiffs to sue the parties liable on the note, to wit: the maker and indorser, and that the plaintiffs wholly neglected to do so for more than the period of thirty days and until the commencement of this suit, during which time the maker of the note became insolvent and unable to pay.

Leave was granted to the defendant to file that plea, and the plaintiffs demurred to it specially for the following reasons:

(1) That the indorser became primarily liable to the plaintiffs by virtue of his contract; that his contract was separate and distinct from the contract of the maker of the note; that there was no unity or privity between the maker and indorser, nor was the indorser in any sense the surety of the maker on his contract.

(2) That the liability of the indorser became perfect on protest of the note and notice of non-payment, and that he could not discharge it by the matters set up in the plea. Two errors are assigned, as follows:

(1) That the court erred in sustaining the demurrer of the plaintiffs to the rejoinder filed by the defendant to the plaintiffs' replication to the first special plea of the defendant. (2) That the court erred in sustaining the demurrer of the plaintiffs to the third plea of the defendant.

Unsealed written contracts are barred by the Statute of Limitations of that State in five years from maturity, and it appears that the note described in the declaration matured on the first of November next after its date, but the record shows that the indorser de ceased on the 15th of November, 1869, leaving the note unpaid and outstanding. Under the laws of the State the general Statute of Limitations runs from the maturity of the contract to the granting of administration upon the estate of the decedent, when the general statute ceases to run and the Statute of Limitations applicable to the estates of de ceased persons begins to run. Brown v. Merrick, 16 Ark., 612; Biscoe v. Madden, 17 Ark. 534. 586*] *Hence the defendant pleaded that the cause of action did not accrue to the plaintiffs at any time within five years next before the grant of letters of administration upon the estate of the deceased indorser.

War, when duly declared or recognized as such by the war making power, imports a prohibition to the subjects or citizens of all commercial intercourse and all correspondence with citizens or persons domiciled in the enemy country. Total inability, therefore, on the part of an enemy creditor to sustain any contract in the tribunals of the other belligerent,

exists by the law of nations during the continuance of the war, but the restoration of peace removes the disability and opens the doors of the courts.

Unquestioned right to sue is the status of the creditor if the contract was made during peace, but the effect of war is to suspend the right not only without any fault on the part of the creditor, but under circumstances which make it his duty to abstain from any such attempt. His remedy is suspended by the acts of the two governments and by the law of nations, not applicable to the contract at its date, but which comes into operation in consequence of an event over which he has no control. Hanger v. Abbott, 6 Wall., 539, 18 L. ed., 942.

Peace, it is said, restores the right and the remedy, but as that cannot be if the Statute of Limitations continues to run during the period the creditor is rendered incapable of suing, it necessarily follows that the operation of the statute is also suspended during the same period.

Attempt is made to distinguish the case before the court from the case in which that rule of decision was first promulgated by this court, but it is clear that the attempt must be unsuccessful, as the same doctrines have since been applied in a case where a mortgagee, who was a citizen and resident of one of the Confederate States, brought a suit after the close of the war upon a bond and mortgage executed prior to the war by citizens of one of the loyal States, and the court held that the period from the proclamation *of the blockade to the proclamation [*587 that the war was closed, must be deducted in the computation of the time which the Statute of Limitations of the loyal State had run against the right of action. Brown v. Hiatts, 15 Wall., 177, 21 L. ed. 128.

Extended discussion of that topic is quite unnecessary, as the oft repeated decisions of this court have established the rule that the Statute of Limitations was suspended in the rebellious States during the existence of the late rebellion, and the express decision of this court is, that the war was flagrant in that State for the whole period specified in the replication filed by the plaintiffs. Batesville Inst. v. Kauffman, 18 Wall., 155, 21 L. ed. 776.

Viewed in the light of that decision, it is clear that the rejoinder filed by the defendant is insufficient and that the ruling of the circuit court adjudging it bad was correct. The Protector, 12 Wall., 700, 20 L. ed. 463; Adger v. Alston, 15 Wall., 555, 21 L. ed. 234, Semmes v. Ins. Co., 13 Wall., 158, 20 L. ed. 490; Levy v. Stewart, 11 Wall., 253, 20 L. ed. 89.

II. Due demand of the maker, protest and notice to the indorser of non-payment are admitted, and it is alleged that the indorser subsequently, by a certain notice in writing, required the plaintiffs, as holders of the note, to sue the maker and the indorser at a time when the maker was solvent and able to pay the same, and that the plaintiffs omitted for more than thirty days to comply with the terms of the notice, during which time the maker became insolvent.

Based on these facts, the second defense set up is that the indorser was discharged by the neglect of the holders of the note to comply with the terms of that notice, which must de

588*] *Simple indulgence, however, or mere delay to enforce payment, without a binding contract to give time, will not, under the general rules of commercial law, have that effect, even in the case of a party occupying strictly the contract relation of a surety. Philpot v. Briant, 4 Bing., 721; Story, P. Notes, 5th ed., sec. 415.

Indorsers, it is sometimes said, are sureties, but their contract, which is a new one as compared with the maker of the note, differs in some important respects from that of the surety, who is a joint promisor with the principal, as the holder of such an instrument is under no obligation to use diligence to enforce payment against the maker in order to hold the indorser. Bk. v. Myers, 1 Bailey, 418; Powell v. Waters, 17 Johns., 179; Stafford v. Yates, 18 Johns., 329; Bk. v. Rollins, 13 Me., 205; Page v. Webster, 15 Me., 256; Bk. v. Ives, 17 Wend., 502; Sterling v. Marietta & S. T. Co., 11 Serg. & R., 182; Kennard v. Knott, 4 Man. & G., 474.

Even in a case where the holder of a promissory note was, after the note fell due, called upon by the indorser to prosecute the maker, of whom the amount might then have been collected, but who afterwards became insolvent, and the holder neglected to do as requested, still it is held that such neglect will not discharge the indorser. Trimble v. Thorne, 16 Johns., 152; Beebe v. Bk., 7 Watts & S., 375. Judicial decisions of high authority deny that the indorser is to be regarded as a surety after his liability is fixed by due presentment, demand and notice of the dishonor of the note, and insist that when his liability is fixed by those acts of the holder, that he, the indorser, becomes a principal debtor himself, subject only to the condition that the holder shall do no act to suspend, impair or destroy his remedy over against prior parties to whom he has a right to resort for a remedy; and support to that view is certainly derived from the conceded fact that the indorser is answer

able upon an independent contract, which

589*] makes it his legal duty to pay the note when duly presented and demanded and due notice is given to him of its dishonor; and also from the fact, which is also conceded, that he has not the same reason as may exist in common cases of suretyship to compel the creditor to active diligence against the maker, as he has in general the complete power, by paying the note, to reinstate himself in the possession and ownership of the same, and thus to entitle himself to a personal remedy against the maker. M'Lemore v. Powell, 12 Wheat., 556; 2 Pars. Bills and Notes, 243245; 3 Kent, Com., 12th ed., 105.

Confirmation that the indorser is not a surety in the general sense is also derived from the fact that he stands in the attitude of the drawer of a new bill, and that he is not primarily liable to make the payment, but only in case of the default of the maker and proof of due presentment, protest and notice of dishonor, and that even then he cannot be joined with the maker, as the surety proper may be, because the maker and indorser are liable on different contracts. 2 Pars. Bills and Notes, 25.

*Suppose that is so, when the theory [*590 is tested by the rules of commercial law, still it is insisted by the defendant that the contract of the indorser in this case was made in the State where he resides, and that the indorser, by the law of that State, is discharged, for the reason that the holder of the note omitted to seek his remedy against the maker, as thereto requested by the indorser.

Support to that defense, as exhibited in the second assignment of errors, is attempted to be drawn from the statute of the State where the indorser resides, which provides, in effect, that a surety in any bond, bill or note, may give the holder notice to sue the principal in writing, and if the holder fails to do so within thirty days the surety shall be discharged. Gould, Dig. Stat. 1015.

Founded on that statute the defendant alleges that the indorsement was made in that State, and the allegation also is that the consideration of the note was a debt due from the maker to the plaintiffs, and that it was made payable to the decedent and was by him indorsed merely as a means of procuring his liability for the payment of the said debt due to the plaintiffs.

Grant that the contract of indorsement was actually executed in that State, still it is the better opinion that the case is not governed by the statute of that State already referred to, for the reason that the statute of the State does not include the contract of an indorser.

Sureties in a note who become joint promisors with the maker, it may be conceded, are within the terms of that statute, as they stand in the same relation to the principal as in a bond given for the payment of money or the delivery of property. Authority to give the described notice arises immediately after