
    
      SAME vs. SAME.
    
    Eastern District,
    
      May 1831
    APPEAL PROM THE COURT OP THE PIEST DISTRICT,
    If a claim be barred by prescription, it still may be offered by way of exception.
   Martin, J.,

delivered the opinion of the court.

This case was lately remanded to the District Court, with instructions to ascertain the amount of damages due to the defendants on their claim in reconve.ntion. They have been assessed at $6050 81; from this sum he has deducted $612 79; admitted by the defendants to be due him, and given judgment for $5438 02, and decreed the defective engine to be returned to the plaintiff.

a be barred by'prescrip-offereOy way of exception.

The plaintiff has claimed wages as a set-off or a compensation against the claim in reconvention; although he has made no claim for these wages, and his action for them is barred by prescription, yet he may successfully plead them in comPensa^on- Qmcb temporalia sunt ad petendum, perpetua sunt ad excipiendum. But the defendants have urged the plaintiff performed his work so unskilfully, that he earned río wages. The District Judge has given as damages that sum which the witnesses judge it would cost to have a perfect and new engine, of the powers and dimensions of the defective one. On this score the plaintiff is entitled to his wages; they amount, with his board, to $1714 19; which reduces the claim in reconvention to $3723 83.

It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be annulled, avoided, and reversed; and that the defendants have judgment for ($3723 83) three thousand seven hundred and twenty-three dollars and eighty-three cents; and that they restore to the plaintiff the defective engine, and a smaller one which they received iri pledge; that they pay costs in the District Court, and the plaintiff in this.  