The opinion
MEMORANDUM OR AUTHORITIES CITED BY E. T. MERRICK ON ARGUMENT — on Rehearing.
The charge of the Judge is correct and is good law. C. C. 2295, 229G. If it wore calculated to mislead, which it is not, still a new trial ought not to bo granted because the facts warrant the verdict. Hen- ' nen’s Dig. pages 97, 99; Nos. 1, 11, 35, 1G, 24, 27, 32, 35, 37.
Governor Moore had no authority to authorize any one or justify any one in burning the cotton of the people. The Constitution of 1852 under which he was acting gave him no such power. Defendant filed a justification. His warrant fails him. His ansuisi1 ealls it a rebellion.
*75 Even a de facto government cannot grant away tlio public domain, much less take the property of citizens for tho purpose of opposing tho government de jure. See Garcia v. Hatehell, 8 N. S. 398, 401. 12 Peters 522 , Garcia v. Lee.
In a lawful government “ all instructions from tho executive which are not supported by law are illegal, aud no inferior court is bound by them.” Brigktly’s (New) United States Digest of Decisions, p. 144. Sec. 86 and cases cited.
Prescription, 4 Sarigney, p. 420, Berlin Ed.
(2) “ The u-tile temp ús is only applicable to such periods of time which are established by general laws and not those established by tho will of individuals as where the Judge has fixed a delay in the progress of a suit.”
(3) “The utile tempns does not avail in all the cases which we have here mentioned but only where the prescribed period of time is a year or less, never when it has reference to more than a year.
“ This rule does not need a.uy proof, for only two prescriptions, a year and one hundred days come under it and for both it is incontestable.” See Mackelday, Brussels Ed., p. 102, p. 111. See Stat. at Large, 12 vol. 590, 1262.
Quia tractabus de uiilibus diélms frequeue est videamus quid sit experi-undi potestatem Habere. 1, 44, 3.
“Because it is frequently discussed as to what are useful days no will see what is meant by having the power to prosecute one’s rights.
It is in the first place necessary that the person shall have tho ability to institute a suit/«oirías agendi. It is not sufficient that the defendant presents himself, or has some one in tho place who shall be capable of defending him; there must not be any cause which prevents the plaintiff from instituting his action. (Nulla idcona causa, imjpediater e.rperirej. Thus, if he is a prisoner or with the enemy, or absent on account of the republic, or in bonds (in vincidis) or if he is detained in another place, or in another country (regione) by bad weather (tempertate), so that he can neither come or send a mandate to another to sue for him, he is considered as not having the ability to act (expuramdi potestatem non ItabetJ. It is clear that he who is sick, but still able to employ another in his case has the power to act. No one will doubt that a person has not the power of acting who cannot be heard before the pretor. Those days only are considered useful on which tho pretor renders justice.” Dig. Lex. 1. Lib. 44. Pot. 3.