New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-07-23
PRESCRIPTION,

The State Auditor, as the cus1etuan VI
State securities, holds in his possession a
number of promissory notes given by pri-
waite parties in part payment for State
lands. 1t appears that many of these
| notes have been due for more than five
years, and this raises the question whether
| prescription runs against the State. For
if the notes in question are prescribed,
they are to be regarded as paid, for pre-
scription is one Of the modes provided by
law for the payment of claims. e
The question whether prescription runs
against the State has never been settled
by our Supreme Court, but that tribunal
has decided that it does not run against
the United States. There are numerous
decisions of the courts of other States, all
holding to the doctrine that the State is
exempted from the provisions of the
statute of limitations. But Auditor
Graham has recently taken steps to obtain
legal advice in the matter. He applied to
Messrs. Benedict & Horror, who examined
and collated numerous authorities, and
give the following as their opinion,
founded upon their researches:
Hon. James Graham, Auditor of Public Accounts:
DEAR SIR-Having informed us you held
a series of notes, given the State by pur-
chasers of its property, IN part payment
thereof; that more than flve years nave
elapsed since the maturity of the said
notes, without steps being taken TO realize
thereon, and that you were desirous OF hav-
ING our opinion upon the point as to
whether the State was subject to the pro
visions of article No $40 of Rays Civil
Code, viz the prescription OF five years. we
reply: 80 .ho
law and authorities, we are OF opinion that
the said article does not include the State
within its provisions. 1t reads:
factions on bills of exchange, notes pay
able to order or bearer, except bank notes,
those on all effects negotiable or transfer
able by Endorsement or delivery, and those
on all promissory notes, whether negotiable |
or otherwise, are prescribed by five years, |
reckoning from the day when the engage
ments were payable"
The article following, No 354l, provides |
that this prescription shall run against |
minors and interdicted persons, and also
against persons residing out OF the State"
It will he observed that no mention is |
made of the State as being included within |
the rule. and we must presume the Leisla- |
ture never intended to bar the rights of the |
people in any civil action, unless SO expressly |
md specially ordered.
The reasons which induce governments to
rame laws of prescription are based upon
he policy of freeing debtor from iitiga-
ion after the lapse of a certain time, during
which his creditor is silent and inactive,
md has slept upon his rights. 1t presup-
poses that each man is vigilant in enforcing
lis individual rights through the courts OF
he country, and when he has not done so
within a specified time, it raises the pre-
sumption of payment against him, in order
hat no one may be called upon, after such
ime, to answer an action when his wit
lesses have died or disappeared, and his
violence and proofs have been lost or de-
troyed.
1t is law in derogation or limitation of
existing rights, and such never include the
state, as not being within its policy, unless
pecially named in the law. /
The reason is that the State is a sovereign.
hat it acts for the people, and that the
reat public policy is to preserve the pubIc
lights, revenues and property from injury
nd loss, by the laches or negligence of
ublic officers.
Attorney General Belden fully concurs
q the above opinion. The numerous au-
horities cited appear to fully sustain the
'rinciple that prescription does not run
gainst State except in cases specially
permitted by law.
Mr.. Graham has had copies of the
opinion and the authorities therein cited
printed for distribution to parties inter-
sted.