Auchincloss v. Theo. Frois & Co.

24 La. Ann. 31

• Court: Supreme Court of Louisiana
• Decided: January 15, 1872
• Docket: No. 1724
• Status: Published

Opinion

Howell, J.

This suit was instituted in December, 1866, by plaintiffs, the holders, who resided during the war and since in the city of, New York, on four promissory notes made in said city, in March, 1860, payable respectively in eight and nine months by the defendants, residents of New Orleans, who pleaded the prescription of five years. To this plea the plaintiffs successfully oppose the act of Congress of June 11, 1864, in relation to the limitation of actions in certain cases (13 Statutes at Large 123), and the decision in the case of Stewart v. Kahn, 11 Wallace 493, carried up from this court, as suspending the prescription in this class of cases.

We take this occasion to remark that in the case of Stewart v. Kahn, the above act of 'Congress was not invoked in this court until application was made for a rehearing, and by our jurisprudence points not raised on the trial will not be considered on application for a rehearing-. It follows, therefore, that the United States Supreme Court -overruled a decision of this court on a point which had never been presented to us in. a manner that we could pass on it.

Judgment affirmed.