Garland v. Holmes

The judgment of the court was pronounced by Rost, J. The plaintiff, a resident of the city of New Orleans, obtained judgment against the defendant, who resides in the State of Mississippi, fot; wages as. captain of a steamboat, the property of the defendant. The services [405] were rendered from the 14th of September, to the 14^Mr May, 1844, and this action was commenced on the 27th of May, 1845, mor^han one year after the rendition of the services. The defendant filed, ■ under art. 3499 of the Civil Code, a plea of prescription, which was disregarded by the court below, and he appealed. Points of law not made in the original argument of a ease, will not be noticed on an application for a re-hearing, where justice does not require it. Mount and Mott, for a re-hearing, contended that the maxim, Contra non va-lentem &c., cannot apply to the plaintiff’s case, as he might have caused a curator ad hoc to be appointed and have sued. Civil Code, art. 57. C. P. art. 116. 12 La. 606. 6 Rob. 147, 534. 15 La. 145. 19 La. 262. 1 Peters, 360. We are of opinion there is no error in the judgment. The defendant, at the time he made the contract, resided in the State of Mississippi, and has continued to reside there. The plaintiflf, having found him in Louisiana temporarily, instituted this action, and arrested him. The prescription of one year does not apply to such a case. Prescription does not run against those who cannot prosecute their claims. 7 La. p. 580. The judgment is, therefore, affirmed with costs.