On Application for Rehearing.
(Feb. 1, 1904.)
PER CURIAM.The statute provides that for failure to file an account every 12 months, or for failure to deposit the moneys of the succession in one of the chartered banks of the state, or for withdrawing the funds of the succession from bank without an order of court, the executor shall pay 'a certain interest per annum on the funds involved. Against the enforcement of this statute the execjitor pleaded the prescription of one year applicable to debts arising ex delicto.
It appeared to the court so obvious that prescription did not apply to this running interest, that the plea was passed over in silence, whereby, in effect, it was overruled.
The executor complains, on application for a rehearing, that the court should have passed on the plea. In a sense, the complaint is well founded. The plea was expressly made, and should have been passed upon.
It was overruled for the reasons, among others, that a statute which provides for running interest at a certain per cent, a year, by its very terms, excludes the idea that the right to recover the interest so provided for can be prescribed by one year, and that prescription cannot run in favor of the executor against the succession he represents.
Rehearing refused.