
    No. 1262.
    Wm. L. Hutchinson v. S. D. & H. Richardson.
    The iacb of defendant, being in the Confedera be service, and thus avoiding citation, does not interrupt prescription.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.
    
      ■Tas. A. Williams, for plaintiff and appellee.
    
      Ti. F. Russell, for defendant and appellant.
    Reporter.-—This action was commenced in January, 1801, on ft promissory note which became due in January, 1859. Defendant pleaded (he proscription of five years. Plaintiff, in answer to this plea, produces testimony to show that defendant was in the Confederate army, and thus, by his own act, prevented the commencement of this action.
    The testimony is materially as follows :
    Witness Ellis says : “ I saw defendant in Camp Moore, in the latter part of 1861; he was captain of a company in the Ninth Louisiana Regiment. I know he was still in the service in 1862.”
    WitnessWelslisayB : “Defendant, Hardy Richardson, was post-quartermaster from,the latter part of 1863 to the surrender, in 1865.”
    It is admitted by defendants’counsel, that the Act of the Louisiana Legislature relative to proceedings against persons in the military or naval service of the State, or of the Confederate States, approved December 21st, 1861, was in force and recognized by the Courts as law, and as applying to this case.
   Howei/d, J.

This is an action upon a promissory note, duo on 12th January, 1859, against which the prescription of five years is pleaded by H. Richardson, against whom alone judgment was rendered.

He accepted service of the petition on the 10th January, I860, about seven years after the maturity of the note sued on, and there is no legal evidence in the record showing an interruption or suspension of the prescription pleaded.

It is therefore ordered, that the judgment appealed from be reversed, and that there bo judgment in favor of defendant, Ilardy Richardson, with costs in both courts.

Same Cake.—On Ai’m-joatton eor RionEARTNO.

IIowedd, ,T.

A rehearing is asked lor in this case, on the. ground that a motion to dismiss the appeal was not passed upon.

In the, application, it is admitted that said motion was notin the. record, but it was filed ; and, on referring to the clerk’s docket, wo find an entry of the filing- of a motion to dismiss, on 2d March, 1867, which motion, for the first time., comes to our knowledge on the application for a rehearing-.

The appeal was made returnable, and the transcript filed, on Monday, 25 th February, 1867. Court was held on each day of that week, except. Saturday, March 2d, when tlio motion was filed. More than three judicial days liad elapsed, and the motion, consequently, came too late. 17 A. 21. The ease was submitted on the 4th, upon the brief of counsel for defendant—no brief of plaintiff’s counsel or motion to dismiss coming- into the hands of tho Court—and tho caso decided on the -31th. Under those circumstances, we do not feel authorized to open the ease for the purpose of examining a motion to dismiss the, appeal.

Rehearing- refused.  