Martin v. Bryan

Merrick, C. J. The plea of prescription must be sustained.- The action is brought to recover $8,100, the balance of wages (after allowing a credit of $300) alleged to be due the plaintiff for services as a pilot on Red River,' on the steamboat Bello Gates, for the season of 1855 ; that is, from January until about the first of September of that year. Petitioner further alleges, that he was discharged' before the expiration of the season, without cause. The plaintiff’s cause of action, accrued when he was discharged. 1 Rob. 321. As he went into the employment of the owner of- the steamboat Magnolia Branner, in May, 1855, from whom he received $750,. he must have been discharged before that time. Service of citation was made 21st of August, 1856. Without, therefore, relying upon the testimony of Adam Leonan'd, (which appears to us free from suspicion or bias,) we find that the prescription of one year, under Art. 3499 C. C., had elapsed, and that the plaintiff’s action was barred. 10 Rob. 53 ; 11 Rob. 403. But it is said the contract was by the season, and, therefore, not covered by the Article of the Civil Code in question. This Article applies “to the wages of the officers, sailors and crew” of ships and other vessels. It does not distinguish whether those wages are for services by the month or the season, and we cannot distinguish where the law does not distinguish. C. C. 8, 20 ; 6 Toul. 75. Again, it is said that one of the defendants was absent from the State, and, therefore, the maxim conVra non mlentem agere, non eurrit prescripts applies. The plaintiff, in his petition, alleges that the defendants are residents in the parish of Natchitoches. Service was made upon a free white person residing with them at their domicil, and there is nothing to show that the service of citation might not have been made at any time after the cause of action accrued, as well as when it was made. It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed; and that there be judgment in favor of the defendants and against the demand of the plaintiff, he paying the costs of both courts.