Burke v. Flood

3 Mart. 403

• Court: Supreme Court of Louisiana
• Decided: March 15, 1818
• Status: Published

Opinion

Martin, J.

delivered the opinion of the court. This is an action for work and labor done by the plaintiff, as a carpenter, for the defendant. Prescription was pleaded, and the plaintiff's counsel filed a replication to the plea, calling on the defendant to answer, on oath, the following interrogatory: Have you paid the plaintiff's claim? The parish court was of opinion that the interrogatory was an improper one, and refused to receive the replication. There was judgment for the defendant, and the plaintiff appealed.

The case is before us on a bill of exceptions to the opinion of the court, in rejecting the replication and a statement of facts.

East'n District. March, 1818. Denys for the plaintiff, Herman for the defendant.

Authorities have been read to shew that the prescription invoked. Civ. Code, 488, art. 37, is grounded on a presumption of payment only, and that the plaintiff may require the defendant to say on oath, whether the debt has been paid or not. 2 Pothier's obl. n. 684. But all the authorities cited are from French writers, and are grounded on a positive textual provisions, Ord. 1673, tit. 1, art. 10, Coutume d’Orleans, art. 265, Napoleon Code, art. 2275. The opinion of the parish judge appears to us correct, as no similar provision exists in the laws of this state or of Spain.

In examining the evidence which comes up, we find that the prescription had clearly run against the plaintiff, when he brought the present suit.

It is, therefore, ordered, adjudged and de creed, that the judgment of the parish court be affirmed, with costs.