New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-11-07

3. That this interruption continues until the
| proceedings are ended by final Judgment {.
and that only then does prescription begin
to run a second time.
Section five, page sixty-eight, Revised
Statutes of 1886, in force when the defend
ants signed the bond of Biep venu, provides
that ''the securities on all bonds given by
the sheritfs may stipulate the amount for
| which they will severaIly become liable,
| which shall be expressed in the bond
| This the defendants did, each binding him
self for a stated sum when signing the
bond. Their obligation was, there tore not
| in sOlido, but joint. The theory of the de.
PENDANTS solidarity Of Indebtedness. laid
down in the first proposition, is fallacious.
Admitting the second proposition in regard
10 the interruption OF prescription TO be cor
| rect, yet as Bienvenu was proceeded against
summarily by rule, the prescription in favor
OF the defendants was not interrupted be-
cause there was no citation served on their
co-obligOr. Hugh vs. Hernandez, No 1851,
Supreme Court. The third proposition.
though true as principle of law, has no
relevancy, for inasmuch as there was no in
terruptlOn of prescription, it is useless to
consider how long the interruption could
continue, OF by what means it could be
terminated.
Plaintiffs counsel, in another part of his
that the decision in The case of Hugh We.
hernandez ct ais. does not show that pre-
scrlptIOn began to run from the date OF the
service of the rule taken on the sheriff: that
said decision is a strong authority to show
that prescription began TO run after iudg-
ment in the Eighth District Court. The
Supreme Court did not think it necessary
to tx the date from which prescription in
that case had commenced, whether from
the day Of the sale which realized the funds
in controversy, from the time demand was
made by rule ON the sheriff, or from the
date Of the judgment in the Eighth District
Court. 1t was not necessary for tie court
to refer to either of those three different
periods in particular, because the suit
against the securities was instituted more
than two years after the latest of them
The decision last alluded to is not "a strong
authority or any authority at all to show
that prescription began after the Judgment
OF the Eighth District Court. The Su-
preme Court, through its organ. Mr..
Justice Howell, in the case of Kohler
vs.. Walden ct als., above cited,
fixes the day of the demand by the
plaintiff on she sheriff as the date Eom
which prescription begins to run.
1t is contended further by plaintiff that
because the Supreme Court, in the case of
Hugh VS.. Hernandez ct ais, affirmed the
judgment of the district Judge, maintaining
the plea of the prescription of two years
in favor of the defendants, the reasoning
and Obiter dicto Of the Judge of that court 4
were also indorsed and approved by the |
Supreme Court. This is clearly all error.
SO tar from adopting some of the views of |
the judge Of the lower court, the Supreme |
COurtexpressly lays down the reverse of a |
enunciateG by him in his opinion |
in the case.
ut was argued says The district Judge, !
that prescription was at all events inter |
rupted by proceedings taken against the |
on the bond bv way Of rule. It is |
correct that such proceedings had |
the effect to interrupt prescription running !
in favor of defendants. Civil Code. |
5000 Here is the language of the Supreme |
Court in the very same case, containing an
entirely contrary doctrine: THE law has |
not given the summary remedy by rule |
against sureties or sherlh's bond !
sDd where the rule was made absolute
and IN a subsequent action Of nuliity, iudg-
ment was set aside on the ground that no
citation had been served on the parties,
the prescription of two years was not IN.
by the institution of such pro-
ceeding against the parties" And again,
says the district Judge: But it is no less
% run again III their favor" As there was
no interruption of prescription, it did not
Begin to run again in their favor.
The district judge held that "the rule
against Bienvenu, the principal upon the
bond, was served upon him July q. 1867;
Judgment entered December 7, 1867. The !
uit was brought more than two years there
lfter, and the right Of action is prescribed"
This language intimates that the district
udge regarded the day of the rendition of the
against the sheriff on the rule as
he time at which prescription began to run,
hough he does not say so plainly, as the
word thereafter might be said to have
eiereace to the tventyfrst OF July, 1867,
r to the seventh of December, 1867. The
supreme Court, as | have already
hown, has fixed the day of the
herlifs default TO pay on demand |
4 the judgment creditor as the
ate from which prescription would begin
0 run The only dictun of the Judge OF
be Eighth District Court in the case, not
0 opposition to a decision Of the Supreme
'ouru, is that which sustained the plea OF
The prescription of two wears,
erein pleaded by the defendants is, in my
plnlOn, sustained and warranted bv the |
wv and the evidence, and should be maip- /
aimed.
The plaintiffs counsel confidently invokes
rticle 5sS, Revised Code of Practice, to !
low that as the court did not decide this
lie before the commencement of the vaea-
on, 1t can not 90 SO thereafter, and, there }
re, new trial can not be granted. take
that said article of the Code of Practice
rs ne reterenceOP application TO the courts |
this parish.
Let, therefore, the rule herein fled June
1913, be made absolute, and new trial be ! =,
; granted.