Harrison v. Meyer

Howe, J. This action was brought for rent, the last installment of which is alleged to have fallen due August 8, 1865. Citation was served December 7, 1868, and the plea of prescription of three years filed by the defendant was therefore correctly maintained by the ■district judge. C. C. 3503. The property in question was seized by the government of the United States daring the late rebellion, and the tenant, Miller, of whom the defendant is executrix, was made to pay rent to the United States. An action similar to the present was commenced in November, 1865, to compel Miller to pay over again to plaintiff, but was discontinued by plaintiff. The discontinuance was voluntary and the suit therefore did not have the effect to interrupt the current of prescription. C. C. 3485. The plaintiff contends that he was compelled to discontinue by military orders, and invokes a modification of the rule contra non valentón, etó. The first of the orders in question was issued in 1864, *581 and merely suspended tlie progress of suits of a similar character then pending. The second, issued in September, 1865, was also general in its scope, and contained nothing which could be held to have compelled the plaintiff to discontinue. It does not appear to have prevented him from beginning his action two months after, in November, 1865, and we find nothing in it which could compel the abandonment of the same. Judgment affirmed. Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.