The Protector

United States Supreme Court

76 U.S. 687

The Protector

THIS was a motion by Mr. P. Phillips to dismiss an appeal, on the ground that it was not brought within the time allowed by law. The case was this:

Freeborn, a resident of New York, had filed a libel against the ship Protector, in the District Court for the Southern District of Alabama, January 25th, 1859, for the price of certain necessary supplies and materials previously furnished to the ship in the port of New York. A decree dismissing the libel was pronounced in December, 1859. This decree was affirmed by Mr. Justice Campbell, in the Circuit Court, on the 5th of April, 1861. The rebellion broke out soon after, lasting about four years. The appeal from the Circuit Court to this court was taken on the 28th day of July, 1869, more than eight years after the date of the decree appealed from.

By the twenty-second section of the Judiciary Act of 1789, it was enacted that writs of error should not be brought but within five years after rendering, or passing, the judgment or decree complained of, or, in case the person entitled to such writ be an infant, feme covert, non compos mentis, or imprisoned, then within five years, as aforesaid, exclusive of the time of such disability. By an act of March 3d, 1803, appeals were given, instead of writs of error, in cases of equity and admiralty jurisdiction, and it was provided that they should be subject to the same rules, regulations, and restrictions as were prescribed in law in cases of writs of error, and the same limitation applied, of course, to appeals as to writs of error.

The case, it was admitted, by Mr. Phillips, might, under certain views of what was decided in Hanger v. Abbott, [*] be supposed to be taken out of the operation of these acts; the rebellion having broken out so soon after the decree was affirmed in the Circuit Court. But he argued that the doctrine of Hanger v. Abbott was not rightly applicable to this special matter of practice, fixed, as it was, by positive statutes. Whichever way, however, that might be, the provisions made by an act of March 2d, 1867, [**] on the very subject of appeals during the rebellion, concluded, as he argued, the matter. That statute ran thus:

'Where any appeal or writ of error has been brought to the Supreme Court from any final judgment or decree of an inferior court of the United States for any judicial district in which, subsequently to the rendition of such judgment or decree, the regular sessions of such court have been suspended or interrupted by insurrection or rebellion, such appeal or writ of error shall be valid and effectual, notwithstanding the time limited by law for bringing the same may have previously expired; and in cases where no appeal or writ of error has been brought from any such judgment or decree, such appeal or writ of error may be brought within ONE YEAR from the passage of this act.'

Mr. Phillips contended that this statute had prescribed in a positive way, a limitation of one year from its enactment within which to bring up appeals situated as this one had been. The time given by the act was abundant, and there was no reason, since its passage, for resorting to the privileges-doubtful as applied to cases like this-of Hanger v. Abbott.

Mr. F. S. Blount, contra.

Mr. Justice BRADLEY, having stated the case, delivered the opinion of the court.


^*  6 Wallace, 532.

^**  14 Stat. at Large, 545.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).