Garrahan v. Curley

Lea, J. In this case the plea of the prescription of three years is interposed as a bar to a recovery upon due bills sued upon, they having been given for money loaned. This prescription is not applicable where there has been an acknowledgment of the loan in writing amounting to an obligation. Sec Civil Code, Art. 3503. Any dictum of the court in the case of Cowan, wife of Aiken, v. Pulley, at variance with this view of the case, was too general in its applition and not intended to cover such a state of facts as the evidence discloses in this case. In that case the note was negotiable, and was sued upon in February, 1854 The second section of the Act of 1852, relative to prescriptions, has reference only to open accounts. Upon the account for alleged disbursements of money, made for the purpose of defraying the funeral expenses of Mr. and Mrs. O'Cara, We consider all the charges of a date prior to the 5th April, 1852, barred by the prescription of three years, whether the claim be considered as for money loaned, or as due upon an account. In the one case, the Article 3503 of the Civil Code is applicable, in the other the statute approved March 5th, 1852, relative to prescriptions. Of the remaining items in the account, the details of which it is unnecessary to recapitulate, we consider as proved disbursements made for the funeral of Mrs. O' Gara to the amount of twenty nine dollars. It is ordered that the judgment appealed from be reversed, and proceeding to render such judgment as in our opinion should have been rendered: It is ordered that the plaintiff, Bernard B. Carrahan, do have and recover of the defendant, Mary Curley, in her capacity as tutrix of the minor Thomas O'Cara, the sum of five hundred and twenty-nine dollars, with interest thereon at the irate of five per centum per annum from the 5th day of April, 1855, till paid' 463 the same to be paid in due course of administration according to law. It is further ordered, that the costs incurred in the District Court be paid by the defendant and appellant, and that the costs of the appeal be paid by the plaintiff and appellee. .