| La. | May 15, 1848
The judgment of the court was pronounced by
This is an action against the defendants as members of the New Orleans Samaritan Society, for a balance of account due the plaintiff by the society, before its dissolution. The defendants, Nicholson and Gardiner, acting as a committee appointed for that purpose by the society, entered into an agreement in writing with Drs. Mackie and Campbell, then proprietors of an infirmary, by which the latter were to receive such patients as might be sent to them by the society, to board them, furnish them with medicines, and also medical and other attendance, for a compensation fixed by the agreement. The society sent a large number of sick to the infirmary, and subsequently dissolved itself, without paying the debt thus incurred. In an action against the members of the committee personally, the late Supreme Court held that the credit was not given to the persons who signed the contract, but to the members of the society, whoever they might be. 12 Rob. p. 28. The present action was instituted in consequence of that decision. The defendants pleaded the prescription of one year for the board, and that of three years for the medical services and the medicines furnished, under arts. 3499 and 3508 of the Civil Code. This exception having been sustained, the plaintiff appealed. It is proper to state that the plaintiff is now subrogated to the right of Dr. Mackie, under the contract.
The counsel for the appellant contends that, as the advances were made and the services rendered by his client under a previous written contract, the prescriptions pleaded do not affect his claim, and that he is clearly within the .exception in the french text of arts. 3500 and 3503 of the Civil Code — “ á moins qu’il n’y ait compte arrété, billet, obligation, ou demande intentée en justice, avant ce terme.” He has referred us to a french ordinance passed in the year 1673, making analogous dispositions, to arts. 2271, 2272 of the Napoléon Code, taken from that ordinance, and also to several french commentators who are of ¡opinion that this class of prescriptions does not attach when the claim is based on a written title, either public or private. Pothier, Oblig. no. 711. Troplong, Prese, vol. 2, nos. 943, 989.
The argument assumes that the language of the french ordinance is identical with that of our Code, and in this lies the error. The words of the ordinance are; “ 7oulons le contenu ayoir lieu, si ce n’est qu’avant Humeo et les
It may be that our law-givers imitated the french ordinance, but they surely did not copy it. The Code of 1808, page 488, art. 77, provided that those prescriptions should apply, “unless a settlement'has taken place, anote given, or an action be pending before a court of justice thus manifestly changing the meaning of the word obligation in the french ordinance, from a notarial contract to a promissory note. It has been the unanimous opinion of the bench and the bar that these prescriptions attached in ail cases, unless there had been an account acknowledged, a note given for the amount due, or a suit instituted to recover it. and the article cited will bear no other interpretation. In the case of Depas v. Riez, 2 Annual, p. 30, we had occasion to notice a similar change in the legal meaning of words, made by our Code, in the definition of donations mortis causa.
The only alteration made in the article of the Code of 1808 by that of 1825, consists in the insertion of the words “or bond" after the word “note," so as toread: “it only ceases from the time when there has been an account acknowledged, a note or bond, or a suit instituted.” The plaintiff can derive no benefit from this alteration: and the fact that these short prescriptions are extended by the new Code to loans of money and to all claims payable by the year, or at shorter regular periods, except interest, whether those claims rest or not on written contracts, is utterly inconsistent with the reasons given by the french commentators, in support of the distinction contended for. A note given for money lent, comes within the exception in the rule, and is subject only to the prescription provided for that class of instruments. But a written agreement for a loan of money, entered into before the loan was actually made, would not, as the plaintiff’s counsel supposes, arrest the prescription of three years.
On the other ground taken by the appellant, that arts. 3499 and 3503 are not applicable to him, the judgment is clearly right. Those articles embrace all persons within their categories, who make it a business to give their labor, their art, or their supplies, for an adequate compensation, and with a view to profit.
We have reluctantly come to the conclusion that the judgment should be affirmed. The defendants have availed themselves of the indulgence of the plaintiff to defeat his just rights, thus leaving him the only real, though unwilling, Samaritan.
We cannot refrain from saying that, although the defendants are legally released, there is, in our opinion, a strong moral obligation to seek out the solvent members of the association, and raise a contribution for the payment of the plaintiff’s claim. Judgment affirmed.