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C. Richard v. Ben. Butman
Land, J.
The defendant is sued as the drawer of a draft, dated March 1st, 1850, payable ninety days after date, to his own order, and accepted by the drawees, Butman & Co.
The draft has the following endorsement upon it: “I agree to bind myself for the amount of this note when due.”
(Signed) A. Wintekcast.
After maturity, the plaintiff sued Wintercast, obtained judgment against him, and caused an execution to issue, which was returned nulla bona.
The citation was served on Wintercast on the 31st of January, 1851.
The plaintiff alleges that Wintercast was a debtor in solido, with the defendant, and that the judgment against him, is a bar to the plea of prescription by the defendant.
The defence in the lower court, was the general issue. The want of protest and notice of non-jiayment, and novation — and in this court, the defendant has pleaded the prescription of five years.
Whether the defendant was a member of the firm of Butman <& Co., the acceptors of the draft does not appear. It is, however, only necessary, as the case is before us, to consider the plea of prescription filed in this court.
The suit against Wintercast interrupted prescription as to the defendant, for the reason, that the former was the surety of' the latter, and bound with him in solido for the payment of the draft. McCausland v. Lyons, 4 An. 273 ; McGuire v. Bosworth et al. 1 An. 248 ; Drew v. Robertson, 2 An. 592 ; C. C. 2086, 3004, 3517, 3518.
Prescription, however, commenced running again in favor of the defendant, at least, from the date of the judgment against Wintercast, and more than five years had elapsed from that date, before the commencement of this suit, in which the defendant was cited, on the 3d of May, 1858. Millaudon v. Beazley, 2 An. 916. Hite v. Vaught, ibid 910 ; Dwight v. Brashear, 5 An. 551.
The plaintiff’s action is, therefore, prescribed, unless he can show some other interruption, than the suit against Wintercast. C. C. 3505.
It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the cause be remanded for further proceedings, on the plea of prescription, according to law; and that the plaintiff pay the costs of this appeal.