Aby v. Brigham

Ludeluto, C. J. In 1860, the plaintiffs, who were commission merchants of George S. Clark, a resident of Mississippi, accepted for him two drafts and paid them, one for §3487 46, due on the eighth of January, 1861, the other for $235, due on the first of December, 1860. Clark died in 1861, and after the war, J. H. Brigham was appointed curator of the succession of Clark in Morehouse parish, in which Clark owned property. About the first of March, 1867, suit was instituted for the sums thus advanced and commissions, and service of citation and petition was made on the same day. The defense is, the prescription of three and five years. Clark, the drawer, resided in Mississippi, while the plaintiffs resided in New Orleans. On the first of May, 1862, the authority of the United States was re-established over the city of New Orleans, and the State of Mississippi continued within the Confederate lines till the close of the rebellion, and during that time no suits between said parties could have been instituted. The Supreme Court of the United States has decided that the act of Congress of the eleventh of June, 1864, entitled “ an act in relation to the limitation of actions in certain cases,” was valid, and it suspended the course of prescription as between persons residing in the Federal and Confederate lines during the existence of the rebellion. 18 Wallace, 151; 11 Wallace, 244, 493, 508. The same tribunal has decided that the war commenced on the nineteenth of April, 1861, and terminated on the second of April, 1866. 12 Wallace, 700. So that neither the prescription of three years, nor of five years, had accrued in March, 1867, when this, suit was filed. ' It is therefore ordered that the judgment of the lower court be avoided and annulled, and that there be judgment in favor of plaintiffs and against the defendant, J. H. Brigham, curator of the estate of George S. Clark, for §3815 46, with legal interest from the twelfth of January, 1861* and for the further sum of $235, with legal interest from the first of December, 1860, and costs of both courts, to be paid in due course of administration. Kehearing refused.