Burch v. Americanus Willis

Howell, J. In October, 1866, the plaintiff instituted this suit to recover the sum of nine thousand nine hundred and seventy-five dollars, witli legal interest from the first of September, 1865, as the value of fifty bales of cotton, which he alleges the defendant “took and appropriated to his own use and benefit, without any right, title or legal claim whatever, in the summer or fall of 1865.” In the answer the defendant admits taking twenty-five hales of’ cotton, but avers that it was with the approbation and consent of the plaintiff, and by virtue of a purchase of fifty-four hales in 1863, from Mrs. Sarah A. Willis, wife of the plaintiff Burch, who subsequently ratified and approved said sale, which sale included the cotton taken by defendant. [493] After filing the- answer defendant filed tlie plea of prescription of one year, applicable to' offenses and quasi offenses, wMolx is pressed upon our consideration as disposing* of the case. Plaintiff’s counsel contends that, even if the charge in’the petition amounts to a tort, the defendant has given another character to the action and thus taken it out of the-application of the plea filed. Prescription may be pleaded a*t any stage of the cause, and even in the Supreme Court, and if applicable to- the demand to which it is opposed must bo sustained. The character which the plaintiff gives to his action by his pleadings must govern in determining the prescription applicable to it. 12 A. 358, 359; 13 A. 609. That the charge in the petition in this case constitutes a tort there can be little doubt. The defendant is charged with having taken and appropriated to his own use the property of plaintiff without right, title or legal claim whatever. It was therefore a wrong, an offense. It was the taking and appropriating plaintiff’s property without his consent, which caused him damage to the amount of the value of the property, and this amount as fixed by him is claimed in this suit; and as the evidence shows that the act complained of was committed more than one year prior to the institution of this suit, the prescription pleaded is applicable and must be sustained. It is therefore ordered that the judgment appealed from be affirmed with costs.