
    No. 1396.
    A. Schlenker, Liq. v. R. W. Taliaferro.
    I£ the interest that has accrued on a promissory note, at the date of filing the suit in the District Court, when added to the principal demand, exceeds five hundred dollars, the Supreme Court will have jurisdiction of the appeal. ,
    The burden of proof, falls upon the holder of a promissory note, to show a state of facts that will defeat the plea of prescription. , 1
    The maxim, centra non valentem agere non currit prcescriyt'o, cannot hH invoked by the holder of a promissory note to defeat the plea of prescription, where suit might have been brought beforo it was acquired (Ante page 131.)
    APPEAL from the Third District Court of New Orleans, Fellowes, J.
    
      Cotton & Henriques, for plaintiff and appellee..
    
      Hmoláns S Fish, for defendant and appellant.
    
      Brief for defendant and, appellant.
    
    This suit is brought for, the recovery of $422 78. $316 22 is in the form of a promissory note,1 dated January 1st, 1861, and due one day after date, and $116 46, in open account dated' January 1st, 1861. Record, pp. 5 and 6.
    The suit was filed September 5th, 1866. Record, page 1.
    The defendant pleads the prescription of three and five years.
    Both the note and account are prescribed on their face. Civil Gode, Article 3505.
    The District Judge, without any apparent reason, invoked and applied the maxim, “ Contra non valentem apere nulla currit prceseripiio,” and rendered judgment against the defendant for the whole amount.
    Defendant maintains, first, that the maxim above quoted has no application in our system of jurisprudence to that class of eases to which the present suit belongs, if indeed it has any rightful application at all. The Supreme Court of Louisiana have always looked upon the application of strange principles, not enacted into our system by legislative sanction, with great disfavor, and, where the law is positive and clear, the maxims of other systems have seldom been invoked, and, when so applied, only in particular cases. The laws of Louisiana derive their sanction and force entirely from legislative authority. This maxim, whenever applied, takes tho place of a positive written provision of the Civil Code, and must be considered judicial legislation, a very dangerous precedent to establish in any system of laws, and more especially so in our own, where we have a complete system of written statute law.
    In the case of Reynolds v. Boison, 11 An. p. 729, cited by the District Judge in this case, the Supreme Court held that this maxim had no application whatever in cases where the plea was made acqúirenili causa ; but say tho Court, “it has been applied to prescriptions: liberandi causa.”
    
    It would seem from the language of the Court, in this case, the only one relied on by the District Judge, that the Court had serious doubts about the propriety of invoking this maxim in any 'case. Certain it is that it should never be applied in any case, where the law has furnished a,clear and positive provision. The only method known to our law by-which prescription is interrupted is by citation. It has been repeatedly decided that an illegal or defective citation does not interrupt prescription. 10, 485. In the present case the law itself is suspended and a Roman maxim takes its place. ' '
    .«The facts of the case are, as shown by the testimony, that both plaintiff and defendant resided in the Parish of Catahoula, from 1861 to 1864, and then defendant moved to New Orleans, where lie has since resided. Where plaintiff was after 18G4.to 1866, the time of bringing the suit, is not clearly shown, nor is it material. Defendant resided in the city of New Orleans for more than one year before prescription obtained, where hp could have been sued. The Courts being open all the time, plaintiff could have brought suit against defendant at any time for two years previous to the time the note was prescribed — not having done so he is in no position to invoke a suspension of the law to cover up and shield him from the consequences of his own laches.
    Where a note is prescribed on its face, and it is not proved that plaintiff could not have brought his action at an earlier date, .the plea of jjrescription will prevail. 19 A. p. 17Ó. The mere existence oí the war does not, of itself, suspend prescription.
    The fact of defendant being in the Confederate service, and thus avoiding citation, does not interrupt prescription. 19 An. p. 187.
   HowELn, J.

This is a suit on a promissory note, and open account, in wliich the maxim, “ Coniránon valentem agere nulla curriiprezsariptio,” is invoked against the plea of prescription of three and five years. .

It was suggested at bar, that the sum invoked, is not within the jurisdiction of this court, but we find that the interest accrued on the note, at the date of instituting the suit, September 5th, 1866, makes the total of the note and account exceed $500.

The proof is that the parties resided, at the date of the note, January 1st, 1861, in the Parish of Catahoula, in this State, and that in January 1864, the defendant came to this city, where he has ever since resided, and was the post-master. There is no reason assigned why suit could not have been brought against him, in the courts of his domicil, before prescription on the note was acquired, January 2d, 1866, and according to the doctrine of the case of Rabel v. Pourciau, 20 A. 131, the maxim invoked cannot avail the plaintiff.

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

'IjpAniAÉEEEO, J., recused.-  