Williams v. Greiner

HowEnn, J. Plaintiff claims the value of four hogsheads of sugar and [152] three hundred and twenty barrels of corn, alleged to have been taken and carried áwáy from his plantation, without his.consent, by the defendant, and appropriated to .the use of the latter, in the months of November and December, 1862. The defendant, besides a general and special defence, pleads the prescriptions of one and three years. Judgment was rendered against him, and he has appealed. , We think the plea of prescription should have, .been maintained. The alleged taking and carrying away occurred between the 3d and the 12th or 15th of. November, 1862, and citation in this suit, was served on defendant on the 28th of November, 1865. If the action is considered as one in damages for a tort, in taking and appropriating personal property, as set out in the petition, it'is prescibéd by one year. If it be viewed as a suit upon an open account, it is prescribed by three years, which elapsed before the service of citation herein. It is therefore ordered that the judgment appealed from be reversed, and that there he judgment for defendant, with costs in both courts.