
    No. 1977.
    J. W. Zacharie v. R. Sproule & Co.
    3:i a case where the United States military authorities took possession of leased property iu the-city of New Orleans, during the lato war, it was held that the loss-ee was, from that date, absolved from all obligations to the lessor, on account of the lease; that, in a suit to enforce l>ayment of the rent for the unexpired lease, by the lessor, if the lessee showed a termination of the lease by the military authorities, he was discharged; that, in a case of this kind, the lessor could not invoke tho maxim, contra non valentón, etc., to dcieat the plea of prescription, even if this maxim could be applied m any case.
    APPEAL from the Fifth District Court of New Orleans. Leaimont, J.
    
      John Claiborne, for plaintiff and appellant. W. JO. Kgontg, for defendant and appellee.
   Taliaferro, J.

On the fifteenth of May, 1858, tho plaintiff and defendants entered into a contract of lease, whereby tho latter leased certain store houses, in the city of New Orleans, for tho term of five years, to commence on tho first of November, 1858, and to end on the thirty-first of October, 1863. Tho lessees were to pay $4000 annually, in quarterly installments of $1000 each, for tho payment of which they wore to give notes on the first day of November of each year.

In tho month of April, 1863, the lessees vacated the premises, with the consent and under tho direction of the United States military authorities, then in military occupancy of tho city.

It appears that the lessees paid to the military authorities, under a speeial military order, the rent from tho first of November, 1882, to April, 1863, when they vacated the premises. It also appears that they had paid the rent which accrued prior to November, 1862, to the plaintiff, or his agent.

The plaintiff brings suit for the last year’s rent — that is, for 1863— except the first quarter’s rent, which ho abandons.

The defense is, the seizure of the property leased, by the United. States military authorities, and the prescription of three years.

There was judgment in favor of defendants, and tho plaintiff appeals.

It is shown that, by the contract of lease, tho last quarter’s rent fell duo on tho first of November, 1803, and that tho citation in this suit was served on the second of April, 1807. Notes were not given for tho rents due in 1863.

The plaintiff invokes tho maxim, contra non valentcm agere non enrrit preseripiio. Tho plea will not avail him that tho defendant was an absentee. It appears that Robert Sproule left New Orleans in April, 1803; that he was then owner of real estate here, and that he loft an agent to represent him; that he returned in 1864, and in 1865, and again in 1866, and has resided here ever since. Tho pdaintiff, although absent himself, had, duriug this time, duly authorized attorneys in fact in New Orleans.

The pdaintiff returned in July, 18G5, and the defendant in August, 3860. Prescription had not been acquired at that time, as to all the plaintiff’s claim. Even if tho rulo, contra non valentcm, were admissible, the plaintiff would have no right to invoke it

We think the decision of the lower court correct.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs in both courts  