Ross v. Johnstone

Wylt, J. The defendant, sued as the maker of a promissory note, has appealed from the judgment against him thereon. The defense is the plea of prescription of five years and the plea of payment. Our attention is directed to -the bill of exceptions taken by the defendant to the introduction of parol testimony to prove the interruption of prescription. We think the evidence was properly received by the court; and the act of 1858, requiring written evidence to establish renunciation of prescription, has no application whatevei to the character of evidence necessary to prove an interruption of prescription. The evidence adduced establishes the interruption As to the plea of payment, it was the duty of the defendant making it to prove it affirmatively and beyond doubt. This he has not done. The transactions of the parties in the running account between them have no direct connection with the note declared on; and an open account can not be pleaded in compensation to a note. We think the plaintiff should have damages for frivolous appeal, as prayed for. Let the judgment be affirmed, with ten per cent, damages thereon.