
    No. 1239.
    C. A. Barriere & Brother v. Herman Stein.
    Where the evidence shows that more than fifteen months elapsed after the maturity of a promissory note, before, any impediment arose to the institution, of tbo suit, the plea of prescription will prevail.
    
      APPEAL from the District Court, Parish of Carroll, Farrar, J.
    
      Goodrich, Pilcher & Montgomery, for plaintiffs and appellees.
    
      DeFrance, Delony ds Roberts, for defendant and appellant.
    
      Brief for defendant and appellant.
    
    The main issue in this case is the plea of prescription. The note sued on was due September 22d, 1859; the defendant was cited March 29, 1866, which makes about six and a half years, and without some evidence to show an interruption of prescription, it seems strange that judgment should have been rendered against the defendant. C. C. 3505.
    It is contended, however, that there was an interruption growing out of the recent disturbances of the country, and this Court is gravely asked to take notice, without evidence, that there was a suspension of civil process. We think this is a king too much. The plea of prescription was filed in the lower court, both by way of exception and answer, and if there are any causes for an interruption, it was the plaintiffs’ duty to have shown them.
    “ Presumptions not established by law, are left to the judgment and discretion of the Judge, who ought to admit none but weighty, precise and consistent presumptions,” etc. C. C. 2267, and authorities cited.
    Were the causes which create the rule contra non valentem universal in their application, as in case of war with a foreign nation, it is barely possible that the court might take notice of it; but a mere civil feud, or rebellion, where the courts were open one time and closed at another, it is asking a court of appellate jurisdiction to descend from its high position, assume the functions of a court of the first instance, and enter into an investigation and calculation of petty details and dates, and that, too, from the uncertain light of public history, proverbially unreliable. But again, even if the court, in general matters, could presume-the cause, creating the rule non constant, that it applies to the parties to this litigation. There were many localities where the courts were not closed, and the court is as much at liberty to presume that the plaintiff could have prosecuted his demand during the six and a half years, as that he was precluded. Neither presumption can be allowed, as they lack the attributes required by Art. 2267, are neither weighty, precise nor consistent, and should have been supported by testimonial proof.
    The question, then, arises, what disposition can be made of this case? To affirm the judgment would be clearly contrary to law; to remand the case would be paying a tribute to negligent practice; and it results that the sole alternative is to reverse the judgment and render judgment for defendant. Pleas of prescription are regarded with favor by all courts, have been denominated by the highest tribunal in the land as statutes of repose, and enacted in the best interests of society. 1 Pet. B. 360; 5 ib. 407.
    A familiar rule of evidence is, that the best evidence in a case must be adduced. Presumption in this ease being secondary, cannot be resorted to.
   Tabtaeebeo, J.

The plaintiffs sue the defendant as a commercial partner of the firm of Stein & Byan, on a promissory note signed by the firm on the 22d March, 1859, for $830 50, and made payable to plaintiffs six months after date.

The main issue in this case is the plea of prescription.

The plaintiffs had judgment in their favor, and the defendant appealed.

We think the plea of prescription ought to prevail. The note became due on the 22d of September, 1859. Fifteen months at least elapsed after the maturity of the note, before there was any impediment in the way of the institution of suit by the plaintiffs, whatever might have arisen afterwards.

It is therefore ordered, adjudged and decreed that the judgment of' the District Court be annulled, avoided and reversed.

It is further ordered that judgment be rendered in favor of the defendant, the plaintiffs and appellees paying costs in both courts.  