The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-02-16


into the State Of Mississippi. The statute of lim
tations was pleaded in bar Of the suit, and the
plaintiff insisted that as the laws OF Mississippi
did not operate on either plaintin or defendant,
nor on the foreign Judgment, until the day on
which the suit was brought, no bar could be inter-
posed founded on the lapse Of time, as none had
interviewed. Here II would seem, was case where
there had been no title tenlpals and in which the
maxim "cortrd non uale1ltena dgere non cur7u
prescriptio" might be applied. ii courts were ct
liberty to supply IL. Yet, neither the Mississippi
court nor the Supreme court OF the United States
would relieve the plaintiff under the rule. The
Supreme Court Of the United States held that
" the acts of limitation furnish rules OF decisions"
"The question Ia one OF legisla-
tive power, and not of practice"
1.-THE act itself makes no exception IN favor oil
a party suing under the circumstances OF these
plaintiffs. So the Supreme Court OF Mississippi
held in the case of McClintock va. Rogers, and
this is manifesty true the face of the act The
Legislature having made no exception, the courts
of justice can make none, as this would be legis.
lating." And after having reafdrmed what was
said IN Mclver vs.. Ragan, already quoted 10 TINS
opinion, the court declared: "The rule Is estao'
lished beyond controversy. 1t was SO held by the
Supreme Court of New York in Troup vs. Smith.
20 Johns, SO, and again in Calls VS.. Waddy, by
the Court of Appeal of Virginia, and also In Ham.
ilton vs.. Smith, by the Supreme Court of North
Carolina, and in Cooke and Jack VS.. 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 1t is the doctrine maintained
in 6towell vs.. Couch, found in Plowden's reports,
1853, and not departed from by the English courts,
even in cases of civil war, when the courts of JUS
tice were closed, and no suit could be brought
As the act of limitation has no exception that the
plaintiff can set up, and none can be implied BY
affirm Aft uDt the iUdgyment.s How, $50. '
And Mr.. Marcade. commenting on article 225l
s sA Ct S ds % WITH
fusion and uncertainty which anciently existed in
France on the subject of the suspension Of pre-
scription, in consequence OF the application, oy
judges and authors, of the rule "contrd non
udlentern," and he remarks:
ale Code a porte remede Get etat de chooses
ct prevent tout danger de ce genre pour Pavenir
en- declarant formellement par notre article, 2z5l,
que Ia prescription court contre tout personne
qui ne peut pas invoquer une exception etablie
par Ia Ioi Ainsi, c'est desormais Ia loi qut sera
le seul guide suvre; les conside rations dequite
qui eussent pu entrsiner aujourdhui tel espri. ct
deman tel autre seront sans valeur. ct toutes les
fois quon so demandera 81 tel cas-, q ralson de 80
a labri de Ia prescription, IL ne s'sgira, pour
repondre que de voir 81 ce cas- rentre on non dams
Pune des exceptions posses par lie Code."s
And be concurs with M. Duranton aud M. Coins
Desle in their views that war, pestilence and
other cases of uis major, are expressly excluded
from the causes which suspend prescription. by
the terms of the article. Marcade Prescription,
D. l5O Rev. etc., etc.; Franc ct Etrang, lS47. PIP.
2s5, 302; Durant0D, los. 2S5, 266. .a.-. - q.
So we think prescription runs against al per-
sons, unless they are included IN some exception
established by law" Art 34S7. Q. @.
The Legislature Of this State might have estab.
lshed an exception to meet the contingencies OF
this case, but they have not; and though the
plaintiff and those similarly situated may exclaim,
10 the language of M. Marcade, "Jlrd LEI. mas
Il fdndrd tOtgOtrs dgrutey-, scrlptd tdDsen."
If our code has furnished rs rule, il is i'm
perstive, even though 1t be shown to be defec-
ii 49, s1aro of
policy are appealed to in favor of another. The
remedy is in the hands of the Legislature. (l6
La, 394.)
This view of the case renders IL unnecessary
to notice the bill of exceptions taken to the
charge of the district judge. and, in other re-
spects, the former opinion rendered in this case
meets with our appreciation.
Ii is therefore, ordered and adjudged that
the decree of this court rendered on the 18th Of
February, 1867, be avoided; that the Judgment
of the district court be annulled, and that the
verdict of the jury be set aside. IL is further
decreed that there be judgment in favor OF the
defendants and that the plaintiff and appellee pay
the costs of both courts.
BY CHIEF JUSTICE ]. T. LUDELNG.
No. 2O04-The Citizens Bank of Louisiana vs..
henry Johnson and widow W. ]. Began. Appeal
from the parish of Iberville, Fifth Judicial District
Court
On the 9th day of December, 1867, the Cit.
zens' Bank of Louisiana obtained order Of seiz.
ure and sale under an act impariing confession OF
Judgment, and containing the pact dc non
0lie7dndO against the property mortgaged, which
was in the possession Of Mrs. W. J. Began. Under
writ issued in the case, the sheriff seized the pro-
perty described in the writ and was proceeding to
| sell the same when he was restrained by an in
| junction obtained by Joseph johnson, testament
| tary executor of Henry johnson.
The Injunction was granted on the allegation
that the notes or obligations, secured by the mort
gage, were extiDguished by prescription--more
than five years having elapsed since their ma
turity. I'D. OIL. -..... . -.
The Citizens Bank prayed for the dismissal Of
| the Injunction for the following reasons, to.wt
| Because the stock notes of Henry Johnson are moi
| prescribed, the same being subject to annual pay
| mepts I'D TO the expiration of the charter
| because prescription did not run during the war
because the original debt of Henry johnson ha:
| been assured by the subsequent purchasers ane
the actual possessor, sued in this case, does no
| plead prescription. LI -.
| Bank Of Louisiana, dssolviDg the Injunction
From this Judgment Joseph johnson, executor
In accordance with one Of the stipulations il
the eleventh section of the charter of the bank
the annual payments necessary to q renewal 0
the notes were made up to the first day OF Febru
ary since which period no payment has bee
made, and consequently the payment OF the note
has been exigible since February i, 1860; III
section of charter, acts of 1885, p. Isl. More tina
five years having elapsed since the last'psymen
| before the bank instituted proceedings undo
their mortgage, the claim would be barred b
prescription, II there had been no interrupto
| thereof. -. -l,--
The notes or obligations which form the basis {
| this suit were executed by Henry johnson,
| stakeholder in the Citizens Bank of Louisiana, !
| pursuance with the terms of the seventh sectio
| OF the charter of the bank, which declares "tha
every stockholder in said corporation, on deposit
ing and pledging his certificate of stock, shall
entitled TO a credit equal to one-haf of the amour
| OF bis stock; Procided, That In proportion a
such stakeholder shall use the credit, he sha
give his notes or obligations to said corporatio
| for the amount so lent him, and shall pay intere.
thereon annually and in advance" Acts OF ls3;
p.lSl.
The notes or obligations are in the words follow
ing:
..Be it known that am well and truly indebte
to the Citizens Bank of Louisiana for value n
ceived in the sum of ss3ss, being the amount {
nv credit as q stockholder of 244 shares Of sal
institution, which sum will pay at the bankin
house in New Orleans, on the LIST day OF Angus
1851, fixed, or renew, according to the provision
| OF the charter Of said bank. The payment OF ID
aforesaid sum OF money is secured by q deed {
mortgage and pledge, passed by myself and viii
before Adolphe Boudousquie. notary public
and for the city and parish of Orleans. under da'
| of this dav -... ... III. Johnson