Maskell v. Pooley

Lea, J. The plaintiff, a judgment creditor of the defendant, having caused to be seized on execution, a twelve months’ bond, the property of the defendant, is opposed by Isaac Trowbridge, who avers that he has a privilege upon said bond or its proceeds of a higher rank than that of the seizing creditor: the said bond being a part of the proceeds of a property upon which he has a recognized privilege as a furnisher of materials, as appears from the note of the defendant, which is in the following words: §404 65. Eranklin, La., June 20, 1848. One day after date, I promise to pay to M. Walker & Go., or order, four hundred and four dollars and sixty-five cents, for value received in lumber and nails and other materials furnished for school house, dwelling, kitchen and store house, on which M. Walker & Go., have a privilege, and I hereby acknowledge their privilege tohe good and correct on the same, bearing interest at eight per cent., from the first of June until paid. Thomas Pooley. This note is credited with a payment of $45 75, purporting to have been received on the 14th of January, 1853. To the claim thus set up, Maslcell pleads the prescription of six months, as against the privilege, and that of five years as against the note. We think it material to examine, only, the validity of the plea of prescription of five j^cars. The third opposition of Trotobriclge was not filed until the 2d of Eebruary, 1855, nearly seven years after the maturity of the note. On the same day that the third opposition was filed, the opponent instituted a suit upon the note, against the defendant, against whom he, afterwards, obtained judgment. The only proof offered to establish an interruption of prescription, consists in the endorsement upon the note of the credit of $45 75, purporting to have been made on the 14th of Januaiy, 1S53 ; but there is no evidence showing by whom or when this endorsement was made. We think the District Judge erred in considering the note as relieved from prescription by the endorsement appearing upon it; proof should have been made of the payment and of the date when it was made. The fact that the third opponent, after the filing of his opposition, obtained judgment, in a distinct suit, against the defendant, in no manner impaired the right of the plaintiff, as a judgment creditor of the same defendant, to plead prescription against the note sued upon. It is ordered that the judgment appealed from, be reversed, and that there be judgment in favor of Thomas Maslcell, the appellant, and against Isaac Trowbridge, the appellee, decreeing that the demand contained in the third opposition of said Troiobridge, be rejected, and said opponent and appellee pay costs in both courts.