ON REHEARING.
Ludeling, C. J.The question to be considered first, is that raised by the plea of prescription.
The acts complained of were committed on the twenty-ninth of April, 1862; the citations in this.suit were served on thirteenth and fourteenth, of March, 1866. The prescription of one year, barring actions resulting from offenses or quasi offenses, had accrued, therefore, unless it was interrupted or suspended. It is not pretended that there was any interruption of prescription. .
But it is alleged that the proscription was suspended from the date of tho commission of the act which injured the plaintiff, until thefifteenth of June, 1865, by reason of the existence of war and civil commotion in tho country, and the impossibility to sue tho defendants before the reorganization of the courts, after tho cessation of hostilities, and the maxim, “ contra non valenlem agere non currit prescription is invoked.
*76The textual provisions of the Civil Code, on the subject, seem plain and unambiguous; and if the question were now presented for the first time for adjudication, there could not be much room for doubting how to determine it. Article 3420 declares, “Prescription is a manner of acquiring property and discharging debts by the effect of time, and under the conditions Regulated nr laav.” Article 3487 declares “ Prescription. mns against all persons, unless they are included in some exception established by law.”
The exceptions are enumerated in the Code. The existence of a state of w.ar is not among the exceptions established by lato, neither is the inability to sue, except in a few instances expressly mentioned. C. C. 2512; 3488 et seq.
It is manifest, therefore, that the rule “contra non válentem agoré non eurrit preseriptio” is not recognized in the Code, except in cases expressly mentioned.
But, notwithstanding the plain and positive provisions of the Code, our predecessors have, in some instances, recognized the maxim, and under its equitable rule havre relieved parties against whom prescription was pleaded. As might have been expected when Judges depart from the plain provisions of Avritten law to decide according to the equity or necessity of each case, conflicting opinions have been the result. And so long as courts continue to act under the notion, that their equity poAvers authorize them to correct, control, moderate or supersede the laAV, with the view of enforcing rights which are just, great uncertainty and confusion will ensue; and as Mr. Justice Blackstone says, courts of equity “will rise above all law, either common or statute, and be most arbitrary legislators in every particular case.”
In Babel v. Pourciau, it was held that “this court has settled a different jurisprudence in regard to the proceedings in actions on bills of exchange and notes payable to bearer or order, etc., and has held that the maxim 1 contra non válentem’ resting solely on jurisprudence cannot bo applied to such a prescription, without violating the manifest spirit and intention of express law ; that that prescription running against minors and interdicted persons, thereby indicated the policy of the larv maker, and his intention that it should be strictly enforced
Wo reiterate that the maxim cannot be applied to suspend the course of prescription against bills of exchange, notes, etc., because it is in opposition to the plain and positive provisions of the Civil Code.
But it is equally a violation of “ the manifest spirit and intention of express larv,” to permit the maxim to apply to the prescription of actions for damages, resulting from offenses and quasi offenses.
Article 3506 says: “The prescription mentioned in the preceding article, and those prescribed above in the first and second pa/ragraphs run against minors and interdicted persons, reserving, however, to them their recourse against their tutors and curators. They run also against persons residing out of the State.” .
*77The prescription pleaded in this case is mentioned in the first paragraph of section third, chapter third of the Civil Code, and therefore, that, prescription also “ running against minors and persons interdicted,” and “persons residing out of the State,” it is manifest that the legislators did not intend to permit the application of the maxim to it, any more than to the proscription against hills of exchange, etc.
The rule “ contra non valentem” is applicable to both classes of cases, or to neither. We think it is not applicable to either. Hatch v. Gilmore, 3 An. 510.
Our attention has been called to the opinion of the Supreme Court of the United States in the case of Hanger v. Abbott, 6 Wallace, p. 542, in which that august tribunal held, that “the rule of the present day is that debts existing prior to the war, but which made no part of the reasons for undertaking it, remain entire, and the remedies are revived with the restoration of peace.”
That this should he the rule wo believe, but that it is the rule, we doubt. And we are sustained in our view of the law by the high authority of the Supreme Court of the United States. In McElmoyle v. Cohen, 13 Peters 327, the court said: “It would bo strange if in the now well understood lights of nations to organize -their judicial tribunals according to their notions of policy, it should be conceded to them in every other respect than that of prescribing the time within which suits shall be litigated in tlioir courts. Prescription is a thing of policy, growing out of the experience of its necessity; and the time after which suits or actions shall be barred, has been from remote antiquity fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for all persons and property within its jurisdiction. This being the foundation of the right to pass statutes of prescription or limitation, may not our States, under our system, exercise this right in virtue of their sovereignty?” In McIver v. Ragan, 2 Wheaton, p. 28, it was admitted that the case was within the act of limitations of the State of Tennessee, and not within the letter of the exceptions, and Chief Justice Marshall, as the organ of the court, said: “Wherever the situation of a party was such as, in the opinion of the Legislature, to furnish a motive for excepting him from the operation of the law, the Legislature has made the exception. It would he going far for this court to add to those exceptions.”
In the case of the Bank of the State of Alabama v. Dalton, reported in 9 Howard, p. 250, the defendant was sued on the very day he moved into the State of Mississippi. The statute of limitations was pleaded in bar of the suit; and the plaintiff insisted that as the laws of Mississippi did not operate on cither plaintiff or defendant, nor on the foreign judgment, until the dag on whieh the suit was brought, no bar could be interposed, founded on the lapse of time, as none had intervened. Here, it would seem, was a case where there had been no utile iempus, and in which the maxim “contra non -valentcm a gore non carrit prescription might bo applied, if court-swore at liberty to supply it. Yet neither the Mississippi court, nor the Supremo Court of the United *78States, would relieve tlie plaintiff under that rule. The Supreme Court of the United States held, that “the acts of the Legislature furnish rules of decisions,” * * * * “the question is one of legislative power, and not of practice.” * * *■
“ The act itself malees no exceptimi in favor of a x>arty suing under the circumstances of these plaintiffs. So the Supreme Court of Mississippi held in the case of McClintock v. Rogers; and this is manifestly true on the face of the act. The Tegislature having made no exception, the COURTS of justice CAN make none, as this would he legislating.’'1 And after having reaffirmed what was said in McIver v. Ragan, already quoted in this opinion, the court declared “ The rule is established beyond controversy. It was so hold by the Supreme Court of New York in Troup v. Smith, 20 Johns. 33; and again in Callis v. Waddy, by the Court of Appeals of Virginia, and also in Hamilton v. Smith, by the Supremo Court of North Carolina, and in Cocke & Jack v. McGinnis, in the Supreme Court of Tennessee. Nor are we aware that, at this time, the reverse is held in any State in this Union. It is the doctrine maintained in Stowell v. Zouch, found in Plowden’s Reports 353, and not departed from, by the JEnglish courts, even in cases of civil war, when the courts of justice were closed, and no suit could be brought.” “ As the act of limitation has no exception that the plaintiff can set up, and as none can be implied by the courts of justice, * * * it is our duty to affirm the judgment.” 9 How. 250.
And Mr. Marcade commenting on article 2251 of the Napoleon Code, corresponding with article 3487 of our Civil Code, alludes to the great confusion and uncertainty which anciently existed in France on the subject of the suspension of prescription, in consequence of the application by judges and authors of the rule “ contra non valentem,” and he remarks, “Le Code a porte remede a cet etat de dioses, et prevenu tout danger de ce genre pour l’avenir, en declarant formellement, par notre article 2251, que la prescription court contre toute personne qui ne pent pas invoguer une exception estable par la loi. Ainsi c’ est desormais la loi qui sera lo seul guide a suivre; les considerations d’equite qui eussent per entrainer aujourd ’liui tel esprit et domain tel autre seront sans valeur; et toutes les fois qu’on se demandera si tel cas, a raison de sa gravite, ne doit pas etre regarde comme mettant a l’abri de la prescription, il ne s’agira, pour repondré, que de voir si ce cas ventre ou non clans Vune des exceptions posees par le Code.”
And he concurs with M. Duranton and M. Coins-Delisle in their views that war, pestilence and other cases of vis major, are expressly excluded Horn the causes which suspend prescription, by the terms of the article. Marcade Prescription, p. 150. Rev. do dr. franc, et etrang; 1847, p. 285-302. Duranton, Nos. 285, 286.
So we think. “Prescription runs against all persons, unless they are included in some exception established by law.” Art. 3487, C. C,
Reporter. — The first opinion iu this case was pronounced by Mr. Justice Taliaferro of the Supremo Court, organized under the Constitution of 1864, in which the maxim contra non valcntem, etc., was ap-l>lied. A rehearing was granted and the case was transferred to tho present Supreme Court, organized under tho Constitution of 1868. Chief Justice L«doling confined his review on tho rehearing to the plea of proscription, overruling the former decision on that point and thereby reversing the former decree. It may hero be noted as an index of the progress of j udicial opinion on the question of proscription, that wo of the judges of the present court, Messrs. Taliaferro and Howell, were members of tho Supremo Court immediately preceding this, both of whom were on the béncli at tho time tho first opinion in this case was pronounced, and both of whom now concur in tho new- doctrine established on tho suspension of proscription.The Legislature of this State might have established an exception to meet the contingencies of this case, but they have not; and though tho plaintiff, and those similarly situated, may exclaim, in the language of M. Marcado “dura lex, mais il faudra toujo'urs ajoutcr, Seripta tamen.”
If our Code lias furnished us a rule, it is imperativo, even though it bo shown to be defective, and grave and weighty considerations of policy are apxicaled to in favor of another. Tho remedy is in the hands of the Legislature. 16 La. 394. '
This view of the case renders it unnecessary to notice the bill of exceptions taken to the charge of tho District Judge; and in other respects tho former opinion rendered in this case meets with our approbation.
It is therefore ordered and adjudged, that tho decree of this court, rendered ou tho twenty-fifth of February, 1867, be avoided, that the judgment of tho District Court be annulled; and that the verdict of tho jury be set aside. It is further decreed that there .be judgment in favor of tho defendants, and that the plaintiff and appellee pay the costs of both courts.