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

gal delays he ftuEishedd bond 10Th good security,
for an amount exceeding one-hdlf the amount Of
hard, the judge states that the appellant failed TO
furnish, within the legal delays, Z" the bond re-
quired by law" He does not state wherein the
bond wss defective, II bad, or that the bond, if
good, was filed too late.' We have not copy of
the bond before Us, but The petitioner having
sworn TO the statements above mentioned, 1t was
the duty of the judge to have stated distinctly
wherein the appellant had failed to comply with
the requirements of the law.
The court then goes on explaining the right OF
appeal being constitutional right, and its exer.
else required by law. Cites authorities, showing
that the judge dis CLEARLY exceeding the bounds
of his jurisdiction" 5000 ErF Tr
The petitioner is entitled to relief, but we can.
not accord it to him in the form he has asked for it.
1t is therefore ordered that the application for
q mandamus be dismissed of petitioners cost, re.
serving 10 him, however, the right to proceed
against the judge of the Fifth District Court by
writ Of prohibition, should it be necessary.
BY oHIEF JUSTICE J. T. LUDELIHG.
No. 2023-J. Trasimond Landry vs.. Widow Ur.
Gin Landry. Appeal from the Fifth Judicial Dis
trict Court, parish of West Baton Rouge. Favrot
& Lamon for appellee, Barrow d Pope for appel.
liant. On the 4th January, 1868, the plaintiff Oh.
tanned a Judgment against the defendant for
81 764 80, with eight per cent. interest per annum
from April 1860. till paid, subject to credit of
$50. paid on l1th November. 1866, with mortgage
on the property specially mortgaged to secure the
debt.
The defendant obtsined an order for devolu-
tive appeal from the judgment on the 4th day of
JAM, 1865, returnable according to law. She
failed to give bond and bring up the appeal on
the next return day for appeals from that dis
trict, to.wit the fourth Monday of January, 1868.
On the goth day of December, 1868, she gave
bond and security, without having obtained any
other order for an appeal.
bert esy Of ,ss Ss as
trict court aforesaid stating that he was creditor
of the defendant, who. he alleged, was insolvent
and that he was sggrieved by the judgment rem
dered in the suit entitled aforesaid, and pray.
ing for a devolutive appeal therefrom, which
was granted, and he gave bond and security on
the same day.
A motion to dismiss the appeals Of both appel
lants has been made on the following grounds:
That the defendant failed to give bond and bring
up the appeal on or before the next return day
for appeals from that district, towit: The fourth
Monday of January, 1S68-and therefore the judg-
ment is final. That the Judgment having become
fpal etc.. cannot be revived, etc., for the benefit
of an alleged sggrieved creditor.
So far as relates to the defendant the appeal
must be dismissed, on account OF the failure to
prosecute the original appeal. La. Al, 3 An.
339, 10 An. 295, R. 100, @. P. 594.
In relation to the intervening creditor. he has
lost bis right to appeal by his lack Ia not appeal
ing before the expiration Of the time In which
the defendants appeal was to be presented.
N. s., 345. The judgment Is res judicdtd.
II is therefore, ordered that the appeals be dis
missed ct the cost of the appellant.
BY CHIEF JUSTICE LUDELNG.
VIM. D. Smith VS.. Charles ID. Stewart ct ais,
No. 1l97.-Appeal from the District Court. parish
of Pointe Coupee. On rehearing.
The question TO be considered first is that raised
by the plea of prescription.
The acts complained of were committed on the
twenty.ninth Of April, 1862 the citations in this
suit were served on the thirteenth and fourteenth
of March. 1866. The prescription of one year,
barring actions resulting from ofenses or quasi
ofenses, had accrued therefore, unless ID was in.
terrupted or suspended. IL Is not pretended that
there was any interruption of prescription. But it
is alleged that the prescription was suspended
from the date Of the commission Of the act which
Injured the plaintiff, until the fifteenth of June,
1865, by reason of the existence OF war and civil
commotion In the country, and the mpossibility to
sue the defendants before the reorganization OF
the courts after the cessation of hOstilites, and
the maxim contra non U0lenteBt dgere non cur
ri prescription is invoked.
The textusl provisions of the Civil Code on the
subject seem plain and unambiguous; and If the
question were now presented, for the nrst time,
TOR adjudication, there could not be much room
for doubling how to determine it. Article 342O
declares prescription is manner OF acquiring
property and discharging debts. by the effect OF
time, and under the conditions regulated by law"
Article 34S7 declares prescription runs against
sill persons, unless they are included in some ex.
ception established by law"
The exceptions are enumerated IN the code.
The existence of state of war is not among the
exceptions established by law, neither is the
inability 10 sue, except in q few instances, ex.
pressly mentioned. G. c., 25l2 1888 ct seq.
IL is manifest, therefore. that the rae contra
non vdleatem dJere non c1TG prGscriptiO Is
not recognized in the code, except in cases ex
pressly mentioned.
Bot. notwithstanding the plain and positive
provisions of the Code. eur predecessors have,
r nd an
under its equitable rule, have relieved parties
against whom prescription was pleaded. As might
have been expected, when judges depart from
the plain provisions of written law to decide &C
cordiDg to the equity or necessity OF each case
conflicting opinions have been the result. And
so long as courts continue TO act under the no
ton that their equity powers authorize them e
correct, control, moderate or supersede the law
with the view of enforcing rights which are just
great uncertainty and confusion will ensue, and
as Mr.. Justice Blackstone says, courts OF equity
twill rise above all law, either common o.
statute and be most arbitrary legislators in every
particular case"
In Rabel VS.. Porclan, it was held that "thi
court has settled 8 different jurisprudence in re
gard to the prescription in actions on bills of ex
change, ana notes payable to bearer or order
| ETC., and has held that the maxim contra MOI
ualemenl, resting solely on jurisprudence, canno
| be applied TO such a prescription without viola'
| ing the manifest spirit and intention OF expires
law. that that prescription running against minor
| and interdicted persons, thereby indicated tn
| policy Of the lawmaker and his intention that
should be strictly enforced.n
We reiterate that the maxim cannot be apple
| 10 suspend the course of prescription again'
bills of exchange notes, etc., because II Is N OF
position to the plain and positive provisions of tn
| Civil Code. s,,... .,.,;e.,
spirit and intention of express law" to permit ID
maxim to.apply TO the prescription of actions fc
| damages resulting from ofenses and quasi ofiense
Article 1906 says: 1.-The prescription mentione
| in the preceding article, and those prescribe
| above, IN the first and second paragraphs, ruI
against minors and inter dcted persons, reservine
| however, TO them their recourse against thei
| tutors and curstors. They run also against PEI
| sons residing out of the State"
The prescription pleaded for in this case Is mel
| toned in the first paragraph of section thirC
| chapter third Of the Civil Code, and therefore
thar prescription also, running against minor
and persons inierdicted," and persons residin
cut of the State" II Is manifest that the legsls
tors did not intend to permit the application of IN
maxim to It any more than to the prescripto
| against bills of exchange, etc.
The rule contra non UotenteDl" is applicabl
| TO both classes of cases or TO neither. We thin
it is not applicable to either. Hatch Vs. Gilmore
/ An. $40.
Our attention has been called to the opinion
the supreme Court of the United States, in ID
case Of Hanger VS.. Abbott, (6 Wallace, p. 542
A. A-sk al hall ~ 90