Hays v. Marsh

Morphy, J. The defendant, being sued on a promissory note, drawn in solido by himself and the late Edwin L. Cockle, to the order of' the petitioner, sets up the plea of prescription. The note was payable in all January, 1838, and suit was brought upon it only in April, 1843. This defence cannot avail the defendant. The record shows that on the 17th of January, 1843, the claim was presented to the administratrix of the estate of his co-obligor, Edwin L. Cockle, and by her admitted to be due. But leaving out of'view this acknowledgement of the debt, about the validity and effect of which there has been some discussion at bar, it is shown that the attorney, in whose hands-this note was placed for collection two years before the institution of this suit, frequently applied to the, defendant, who told him that he supposed he would have to pay it if it could not be got out of the succession of Cockle, and requested the attorney to try to have it paid by the estate. This appears to us such an acknowledgement of the debt as must have the effect of interrupting the prescription relied on by the defendant. Civil Code, art. 3486. Carraby v. Navarre, 3 La. 263. Judgment affirmed'.