
    
      UNION COTTON MANUFACTORY vs. LOBDELL.
    
    Appeal from the court of the third district.
    resuiates'the plea of prescription.
   Matthews, J.

delivered the opinion of the court. This suit is brought to recover a balance due on a promissory note, which appears to have been made in the state of New-York by the defendant,together with one Isaac Lobdell, jr. The note is alleged to have been executed by partners, (merchants,) and consequently created an obligation joint abd several on the promisors. The answer contains a general denial, and a plea of prescription, founded on the laws of New-York, and also on the laws of this state. The court below gave a judgment for the plaintiffs, from which the defendants appealed.

The only question in the cause, worthy of notice, arises out of the defence based on prescription. The laws of the place of contract, in relation to limitation or prescription, must be left out of view. The doctrine appears to be fully established, that the lea: fori alone governs in respect to such matters. The law invoked to support the plea of prescription in the present case, on which the defendant mainly relies, is found in the 3S05th article of the Louisiana code. It prescribes actions founded on instruments similar to that on which this suit is instituted, by the lapse of five years, to be reckoned from the day when they were '•) payable. Previous to the promulgation of the code, the prescription or limitation of actions like the present was thirty years. The arguments used by the counsel for the defendant in favour of this peremptory exception, have for their foundation the differences between the force and effect of laws relating to legal remedies and those which relate to rights; and a supposed distinction which should be recog-nised in the application of the former class to contracts made under the operation of foreign laws. It is difficult to perceive any substantial difference between a law which should at. tempt to destroy a right by taking away entirely the remedy by which it might have been enforced,and one which should attack directly the right itself! They would in our opinion be equally unjust, and violate in the same degree the rule of interpretation, which denies to all laws a retroactive effect, to the prejudice of rights previously acquired.

The maxim of jurisprudence, which prevents from doing indirectly that which cannof rightfully done*directly, we believe to be , sound.

This is the first time the court has been „ . ? called on to interpret the new rules of pre” scription established by the Louisiana code. The change of limitad on for actions from thirty years to five, is very great: ahd certainly it was not in the contemplation of law-makers, that it should operate instantaneously on contracts and promises, wherein few years had elapsed after the time at which they were to have been performed. Such a construction of the law would indeed have the effect to giveit a most iniquitous retroactive influence on the rights of our citizens; and can on no principle of justice, or any fair rule of interpretation, be maintained.

The article of the code relied on by the defendants, as it relates to the inhabitants of this state, can be only prospective in its operation and effect on the contracts and rights which existed at the time of its enactment. And we are unable to discover any good reason why it should operate differently on the contracts and rights of foreigners who claim the interference of our courts ofijustice to enforce their claims. The plaintiffs had a right of action against the defendant on the contract which is the founda-t’on of the present suit, up to the period of the . „ **• . . . promulgation or the code: u was vested in them, and would have continued to exist much longer under the old law than the time allowed by the new regulation. Independent of any laws restrictive on the subject, the appellant might be forced by legal pursuit to comply with his promise, without regard to limitation of time. The right of the plaintiffs to make this pursuit was thirty years, by our laws, from the period when the debt to them became due. They failed to sue before the new law, in relation to the remedy, was changed; and their claim must now be regulated by the new law. The remedy has been modified, and must be used in pursuance of this new modification, according to the time therein prescribed, considered prospectively from the date of the last law, whether suits be brought on contracts made under the government of foreign laws or those of our own state. The same rights and privileges, the same restrictions and impediments, in relation to the remedies granted by the leges fori, are applicable to them, whether foreign or domestic.

Hennen for the plaintiffs— Watts for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court , . , he amrmed with costs.  