want of a not be supplied ex of court. ed with an incurable disease at the time of the sale. She being dead it. The since, the defendant pleaded the general issue only. There was plea cana verdict and judgment for him, and the plaintiff appealed. Our attention is first arrested by a bill of exceptions to a part ficio by the of the judge's charge, in which he said, that "in the opinion of the court, the plaintiff was not founded in his right of action, not having filed his petition within six months after the discovery of the disease." The law has provided defendants with the plea of prescription, that they may use it as a shield to protect themselves against unjust claims, not to use it as a weapon to destroy just rights. The party who uses it in an unrigheous case, sins greviously, and the court neither can or ought to supply the want of it, ex officio. When the plea is not made, the presumption is, that the defendant thinks it would not avail him at all, and that he cannot righteously avail himself of it. The district court, in my opinion, erred, in directing the jury to disregard the plaintiff's right, on the ground that it was exercised too late, and I think the judgment ought to be reversed, Mathews, J. I concur in this opinion. Judgment reversed. 3. DELPHINE V. DEVEZE. June T. 1824. 14 Martin's Louisiana Rep. 650. tion is ne able to a Per Cur. Porter, J. The plaintiff urges, she is descended from Prescripone Marie Catherine, a negro woman now deceased, who was the ver pleadslave of a certain Marie Durse, and that the said Marie emancipa- claim of ted, and set free, Catherine, and her children, Florence, Luce, freedom. and Cathenine, the mother of the petitioner. She complains that the defendant illegally holds her in slavery, and prays that she may be decreed free, and recover damages for the injury she has sustained by being held in servitude. The defendant pleaded the general issue, and prescription. We shall, before entering on the merits, dispose of the exception, which forms the second ground for defence in the defendant's answer. We do so, by referring to the third partida, title twenty-nine, law twenty-four, in which we find it provided, that if a man be free, no matter how long he may be held by another, as a slave, his state or condition cannot be thereby changed, nor can he be reduced to slavery, in any manner whatever, on account of the time he may have been held in servitude. The plaintiff is entitled to her freedom. 4. Prescription is in CHRETIEN V. THEARD. June T. 1824. 14 Martin's Louisiana Per Cur. Porter, J. terupted by plaintiff seeks to return an in which the plaintift is nonsuited. a Rep. 582. This is a redhibitory action, in which the slave he purchased from the defendant, action and get back the price. The defect alledged is, that the slave is a thief, and addicted to robbery, and it is further charged, that the vendor knew he had those vices at the time he sold him. An action, founded on the same cause as the present one, has been already before us. 11 Martin, 11. The plaintiff was there nonsuited, because he had not furnished proof that he brought suit within six months after he obtained the knowledge of the defect. The present record shows, that he fully removed this objection. Several grounds of defence have been presented in this court against the right of the petitioner to recover. The last point is that of prescription. On this head the counsel for the defendant referred to several authors who have written on the French law. According to them, prescription is not interrupted by a suit in which the plaintiff's demand is rejected; nor where there is a voluntary abandonment of the action. Pandectes Françaises, vol. 7. 581, 582. Dunod, Traité de Prescription, 92.; Denisfart, vol. 3. 740. It is unnecessary for us to go into the question, how the law stands in that country, or to inquire how much of the doctrine on which the appellant relies, depends on provisions particular to the French jurisprudence. By that of Spain, greater facilities were afforded the creditor to interrupt prescription. According to the 3d partida, title 29. law 29., a simple demand of the debtor, in the presence of witnesses, was sufficient. Why an action in a court of justice, although not followed up to any final judgment, should not have as much effect as a simple request, which is not succeeded by a suit, is not perceived by us. Admitting, however, that it has not, another provision of the law already cited, declares, that prescription is interrupted by a suit, and we find nothing in that law which makes any exception, or which goes to show that this interruption, which is declared to result from a demand in justice, loses effect, because the action is not prosecuted to final judgment. Prescription, says this law, ceases to run from the time suit is brought. Of this opinion must have been the compilers of our code, for in transcribing into it the provisions of the Code Napoleon, on the subject of prescription, they omitted inserting the article 2247, which declares, that if the plaintiff desist from his suit, or if his demand be rejected, prescription will not be interrupted. PETERS V. CHARES. 5. The latter clause of March T. 1833. 4 Yerger's Tennessee the third Rep. 176. section of loanee; five years' possession The of a slave which is Per Cur. Green, J. The latter clause of the 3d section of the act of 1801, ch. 25, declaring valid all loans bona fide, &c., &c., must be taken as applying only as between the persons receiving and making a loan of property. Any other construction therefore, would make this provision inconsistent with the plain meaning of the latter clause of the second section of the same act. negroes in question, were in the possession of Daniel Brown, more than five years before the boy Robert was levied on. was not declared by will, or by deed in writing proved and recorded. ing duly As to this creditor, the property was with the possession. Independently of this question, the jury were justified, from the evidence, to find the verdict they rendered in this cause. 6. not declared by will, The loan or by writ METAYER V. METAYER. Jan. T. 1819. 6 Martin's Louisiana Rep. 16. Derbigny, J., delivered the opinion of the court. registered, although bona fide loan, vests the proper ty, as to creditors, with the loanee. A slave who enjoyed her freedom in Hispaniola during the late revolu reckon that The defendant, Adelaide Metayer, a woman of color, is in possession of her freedom, since a number of years. A person who calls himself her master, now sues to make her return to a state of slavery. It was at first doubted, whether the plaintiff had proved himself to be the same individual whom the witnesses call the only tion, may son and heir of Charles Metayer of Cape François, who was the time in esmaster of the defendant, when the revolution of Hispaniola broke tablishing her right to out. But, after an attentive perusal of the record, it is now freedom by believed, that the plaintiff is sufficiently identified with Metayer's tion. son. The defendant pleads, in general terms, that she is free. She has failed in a former suit, where she was plaintiff in damages for false imprisonment, (Metayer v. Noret, 5 Martin's Rep. 566,) to prove her freedom by emancipation under her master's hand; but the evidence in the present case shows that she was in Hispaniola when the general emancipation was proclaimed by the commissioners of the French government, and remained there prescrip Twenty years' possession of freedom, in until after the evacuation of the island by the French in 1803, a period of about ten years. It is further proved, that she continued in the enjoyment of her freedom, without interruption, until 1816; so that she has lived as a free person during twenty-three years; that is to say, three years more than the time required by law for a slave to acquire his freedom by prescription, in the absence of his master. The plaintiff objects, that the time during which the defendant remained in Hispaniola, ought not to be included in this calculation, because the abolition of slavery in that island was an act of violence, and that prescription does not run against those who have been so dispossessed, so long as they are prevented from claming their property, according to the maxim, Contra non valentem agere nulla currit pescriptio. But the plaintiff cannot avail himself of this exception, without admitting, at the same time, that the government of Hispaniola, during its divers revolutions, continued to countenance the general emancipation; and then, instead of the simple fact of possession, the right of the defendant to her freedom by law, would be the consequence; for, if the abolition of slavery by the commissioners of the French republic has been maintained by the successive governments of the island, no foreign court will presume to pronounce that unlawful which, through a course of political events, has been sanctioned by the supreme authority of the country. Therefore, without entering into this very delicate subject any farther than the present case makes it strictly necessary, we are bound to say, at least, that, by virtue of the general emancipation, the defendant enjoyed her freedom in fact, no matter under what modification; and that the years which she passed at Cape François, in that situation, must be included in the time during which she did not live in a state of slavery; which time, at the lowest calculation, exceeds that which is required by law for a slave to prescribe his freedom, in the absence of his master. Judgment affirmed. 7. METAYER V. NORET. June T. 1818. 5 Martin's Louisiana Rep. 566. Per Cur. Dubigny, J. The plaintiff, and appellee, is a woman the absence of color, who complains of having been arrested and imprisoned as of the mas ter, requir- a slave by the appellant, and sues him for damages. The fact of ed for the time of pre- the arrest and imprisonment is admitted; but the defendant, and scription. appellant, contends, that the plaintiff is the slave of Jean Pierre Metayer, whose attorney in fact he shows himself to be. The only question at issue between the parties is, whether the plaintiff is a free person or a slave. Jean Pierre Metayer has intervened in the suit; but, as that intervention changes not the situation of the case, there is no necessity to notice it. It is admitted, on both sides, that the plaintiff once was the slave of Charles Metayer, the father of the person in whose behalf the defendant caused her to be arrested. But the plaintiff maintains that she has been enfranchised by him. The evidence, however, which she has introduced in support of that allegation, is of such a nature that it would be nugatory to investigate it. One only circumstance deserves some notice; and that is, her enjoyment of her freedom during a number of years. It is in evidence that the plaintiff, ever since she left Cape François, in 1803, has lived as a free person, first at Baracoa, in the Island of Cuba, and from the year 1809 at New Orleans. A creditor of her late master caused her to be seized in 1810, as the property of his debtor; but a civil interruption of possession can take place only at the suit of the owner; and this interruption by the owner did not happen until some time in the year 1816; that is to say, after a possession of about thirteen years. By the laws of Spain, a slave can acquire his freedom by a possession of ten years, in the presence of his master, or of twenty years in his absence. It appears in this case, that during all the time that the plaintiff enjoyed her freedom, the master was absent. Thus, according to the Spanish laws, the possession of the plaintiff falls far short of the time required to prescribe. It was doubted whether that disposition of the Spanish laws had not been repealed by the general provision introduced in our code, concerning the prescription of slaves. But, it is believed, that this article of our code is relative only to the acquisition of slaves by prescription, and cannot be construed to embrace the prescription of liberty by themselves. We are, therefore, bound to say, that the plaintiff has not succeeded to prove her freedom, and that she cannot recover any damages for what she calls her unjust imprisonment and detention. 14 |