New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-29
NEW ORLEANS REPUBLICAN, WEDNESDAY JANUARY 30 1873

maxim of contra non volentem forms no
part of our written law, and can not be in
voked to defeat it."
10 Taylor We. Hill. 81 An. 626. il again
held that the maxim contra non roLentep,
can not be invoked by the holder of prom
issory note to defeat the plea of prescrip-
ton.
The next case that comes under review
is that of A. Jaquet Va. Webb, Leyerett &
Co, reported at page Ill. 90 An, in which
the court held that the ma kim Of co3tr0S
non ratentem, etc, being rule of equity,
can not be invoked to overturD express pro
Inhibition of statutory enactments" Art. 81
Civil Code, only permits the court to de-
cide according To equity in cases where
there Is no express law. Prescription ex
lists only by authority of positive enact
ments, and there is no place in the whole
doctrine of limitations for the application
OF the rules of equity. Equity must yield
10 express law, however great the hardship.
what would appear TO be equity to one
set of judges might not appear 50 to
their successors; there would be no
certain standard to ascertain the
rights of persons. We are not aware that
the Supreme Court has passed upon any
case since, in which this recently ignored
rule was invoked. In that OF J. & II.
Anchuiclars vs. Theo. Frvis & Co, "a An.
page 81, the question of prescription came
mp under the operation of the act of Con
gTess of June II, 1864, which applied to
citizens of the 40 herring States. and of the
so-called Confederate States. The plaintiff
10 that case resided in New York, the de-
PENDANT in New Orleans; and the court
held under this act of Congress that
claim held by a resident of the State of
New York, an adheriug State, against
cluzen OF Louisiana, a seeding State, was
not, therefore, affected by the prescription
enacted by the latter State during the time
of such suspension. In the case now I'M
der consideration, if the parties are
acknowledged to have been citizens of
seeding States, and they therefore can not
claim the benefit of that act of Congress.
There is also another class of cases of which
this happens to be one They were such
claims us were not prescribed during the
existence OF the war, and which might have
been sued on after the restoration of peace,
before prescription had accrued but which
were not This is such an one. In all such
the Supreme Court has held with uniform
lty that the rule contra non udlenten, can
afford no relief, and that the plea of pre-
seription must prevail. In the light of these
authorities, and under this new phase OF
our State Jurisprudence on the subject the
exception of prescription in this case must
be sustained.
Sixth District Court.
The Judge rendered decision in the case
of Mary Ann Reilly VS.. Mr.. and Mrs. Con
dron. The petition in this case sets up
that Mrs. Reilly, femme sole, dOmiciled in
this city, has been put in possession of the
succession of Mrs. Brady, heretofore de-
ceased; that said succession embraces,
among other property, an undivided half
interest IN certain square of ground in
the Second District of this city; that said
property was bought by j. NJ. C. Brady,
the husband of petitioners deceased sis
ter, during the existence of the community
of acquests andgains which existed between
them, and that consequently one undl.
yided half thereof belongs to her said
succession, and to petitioner. her heir; that
Catherine Burns, wife of Michael Condron,
who both reside in this city, claims to be
the owner of the whole of the aforesaid
square, and refuses to recognize petitioner
as owner in common, and that said Catha-
rlne Burns is in possession thereof. That
the rents and revenues of the said property
since the date of its possession by the said
Mr.. and Mrs. COndrOn, to wit, since the
fret Of February, 1867 must be estimated
at 500 per month up to such time as pc
titiOner shall have been put in possession,
for one-half of which petitioner is entitled
to Judgment. Wherefore petitioner prays
that she may be decreed as part owner, and
that she have Judgment for the sum of $50
per month from the first of February. 1861
until possession as aforesaid is given To pc
titioner.
Defendant flies general denial, denying
specially that plaintiff is the heir of Mrs.
Brady wife of j. NJ g. Brady, or that she
she has been put into possession of her sut-
cession as alleged. and prays that the suit
be dismissed.
The court decides that lhere 6c Judgment
in favor of defendants. rescgyiug 10 the
plaintiff her rightS on the balance of the
proceeds in the hands Of the sheriff arising
out of the sale ol that same property by
Mrs. CondIon.
The important case of ChatfraiS s Agar
Us Price. Hinc & Topper. which has been
before the cOurt for the past seven days.
was up again yesterday. This case in
wolves many niceties of law, and the de-
cision will cOntaia many points of interest
to business men.