December, 1832. jury that the claim was prescribed only by ten years. The EASTERN DIS. jury returned a verdict in conformity to this charge, and judgment being rendered thereon, the defendant appealed. Strawbridge, for appellant, made the following points: 1. There was error in the admission and rejection of testimony as by bills of exception. 2. There was error in the verdict and a new trial should have been granted. 3. There was error in the charge of the judge. The causes which interrupt or suspend prescription are enumerated by the La. Code, Art. 3482, 3487; beyond these, the law has not distinguished, and the court cannot. Moreover, in the case of Judice's heirs vs. Brent, 6 N. S. 228, the plea of prescription was supported against a claim for continuous services. On the other questions of prescription, the case of Nichols vs. Hanse et al., reported in 8 N. S. 492 and 2 La Rep. 382, and that of Tietjen vs. Penniman, 1 La. Rep. 268, are referred to as showing this falls within the prescription of one year. Schmidt, contra. 1. There is no error in the judgment of the District Court, except the setting aside the order of bail. He therefore prayed that judgment be confirmed as to all the rest, and amended as to the bail. 2. There are no other prescriptions than those established by the Civil Code, Art. 3433. 3. The plaintiff is not in the predicament of any of the individuals enumerated in Art. 3499. 4. Nor does he fall under Art. 3503. 5. Whence it follows, that his claim is barred only by the provision of Art. 3508. 6. Should he be regarded as an overseer, the continuance of his services would preclude the plea of prescription, Vide Art. 3500, which, by expressly declaring that in the cases there enumerated, prescription takes place though the service, &c. were continued, admits the general principle, that COOTE vs. COTTON. December, 1832. EASTERN DIS. Such continuance interrupts prescription, and that the cases there enumerated form an exception to the general rule. COOTE vs. COTTON. 7. The cases referred to by the counsel of appellant, have no analogy to the present case. 8. The appellee moreover relies, on the acknowledgement made by Cotton, and his promise to give plaintiff whatever money he might want. Vide Art. 3486. MARTIN, J. delivered the opinion of the court. The defendant and appellant has built his hopes of the revisal of the judgment, and having the case remanded for a new trial on a bill of exceptions which he took to the opinion of the court, who declined to instruct the jury that the action was barred by the lapse of one or three years, and charged that the prescription of ten years was alone applicable thereto. The plaintiff claimed compensation for services rendered to the defendant, during nine years in buying and selling slaves, and in collecting and superintending others purchased by the defendant. The evidence shows that the plaintiff was employed chiefly in collecting and superintending slaves, bought by the defendant or his agents, for whom it appears he purchased a few and sold some; that the defendant supplied him with sums of money to buy slaves, and other sums to carry to his other agents. It is contended on the part of the plaintiff, that his services were those of an agent, which are barred by the prescription of thirty years under the former, and of ten years under the present code, while the defendant contends they were those of a servant, a laborer or workman, which are barred by the prescription of one year, or at most those of a clerk, which are barred by that of three years. Civil Code, 3499 and 3503. The defendant, to support his pretensions, has urged that the evidence shows that the plaintiff, before he came to his service was in the humble situation of a boatman, a sawyer and a weaver, and the plaintiff has shown that afterwards December, 1832. he dressed so genteel, and lived in such a style that he was EASTERN DIS. thought to be the defendant's partner. COOTE vs. COTTON. The word ser We think the District Court correctly refused to charge that the action was prescribed by the lapse of one year.The plaintiff was neither a workman nor a laborer, and the word servant in the Civil Code, 3499, is in our opinion to be stricted to menial restricted to menial servants. vant in Civil Code Art. 3499, is re servants. wages of a person employed in selltending slaves, is ing and superin barred by the lapse of years. three But we think the judge erred on refusing to charge that An action for the the action was prescribed by three years, as the plaintiff is, in our judgment, to be considered as the defendant's clerk. But the plaintiff has urged that in this view of the case, the continuity of his services presents an obstacle to the application of prescription; because the affirmative proposition in the cases of workmen, laborers and servants, that as to them the continuity of the services forms an obstacle to the prescription, is pregnant with the negative; that in other cases it does not. This point was otherwise determined in the case of Judice's heirs vs. Brent. 6 Martin, N. S. 228. An attorney claimed compensation for services during five years, at one hundred dollars a year, on a special contract; prescription was pleaded and this court held that on the two first years the action was barred. ous charge from the court, it will not be remanded, Although the case was tried by a jury on an erroneous Although the case be tried by the jucharge from the court, we think justice does not require the ry on an erronecase should be remanded for a new trial; because we may terminate it here, without depriving either party of any vantage resulting from the finding of the jury, and give the dendant relief as to the error in which the mistake of the inferior court led them. six ad if it can be terpellate court with minated in the ap out depriving either party of any advantage resulting from the verdict of the jury, and if relief the error resultfrom the charge. Compensation for nine years services was claimed; the can be given as to judge ought to have told the jury that the claim for the first ing years services was barred. Had this been done, the verdict would have been for three years services instead of nine, e. their verdict should have been for one-third of the sum allowed. i. For this one-third the plaintiff is entitled to our judgment. December 1832. EASTERN DIS. judgment of the District Court be annulled, avoided and reversed, and that the plaintiff recover from the defendant the M'CARTY sum of six hundred and forty-seven dollars, with costs in the STEAM COTTON District Court; that the plaintiff and appellee pay costs in NY ET AL. this court. vs. PRESS COMPA MCCARTY vs. STEAM COTTON PRESS COMPANY ET AL. APPEAL FROM THE COURT OF THE FIRST DISTRICT. Where the vendor's title is communicated to the vendee, and the latter confines himself to one objection, he cannot set up other informalities as a ground of suspending payment. At the sale of an insolvent's succession administered by syndics, the mother of the minor heirs of that insolvent may become the purchaser of property belonging to the succession. The re-enactment of a general provision found in a former statute, does not repeal the exception which accompanied that provision in the previous law. When the alienation takes place by auction where the price cannot be known before the object is stricken off, the approbation of the judge can alone be legally given after the sale. 1 This action was brought to obtain possession of three promissory notes, signed by defendants and deposited in bank. The notes had been given for a part of the consideration money of land and buildings sold by plaintiff to defendants. The latter feared they should be disquieted in their possession, and it was agreed the notes in question should remain in the bank until defendants should consent to a transfer of them being made to plaintiff, or until plain December, 1832. tiff should obtain a final judgment establishing the title to EASTERN DIS. the land and buildings. M'CARTY PRESS COMPA The petition sets forth that plaintiff was the wife of Jean vs. Blanque, deceased; that she brought a large sum as her dotal STEAM COTTON portion, as appears by their marriage contract; that her said NY ET AL. husband dying, she was appointed by the Court of Probates of New-Orleans, as guardian of her minor children by said marriage; that she renounced the community; that a forced surrender of her deceased husband's property took place, and syndics were appointed by the creditors with power to compromise with her for her dotal rights; that she received the said land and buildings as part payment of her dotal right; that the minor children, who were made parties, and to whom a curator ad hoc had been appointed, had no claim whatever on the land and buildings. The answer states, that the sale by the said syndics took place without the advice of a family meeting, and without the authorization of a competent judge; that the plaintiff was then tutrix of the said minors, and purchased the said land and buildings, which she was not permitted by law to do; that the proceedings were coram non judice the Parish Court having no jurisdiction, or if it had, they are irregular, the minors not having been made parties thereto. The curator ad hoc appeared, and consented that the prayer of plaintiff's petition be granted. One of the said children having become of age, intervened and stated she had renounced the succession of her father, by act passed since this suit was brought. The curator ad hoc then filed his supplemental answer, sitting forth a similar renunciation on the part of the minors, on the advice of a family meeting. On the trial the cause was dismissed, the judge stating that no cause of action had been shown against the defendants. The plaintiff appealed. Moreau and Soulé, for appellant. D. Seghers, for appellees. The opinion of the court was delivered by PORTER J. |