Blake v. Bredall

15 La. 550 | La. | 1840

Bullard, J.,

delivered the opinion of the court:

In this case a rehearing was granted, on the suggestion, that a plea of prescription set up by the plaintiff against the claim of Wiltz was not considered by the court; whereas it was clearly supported by evidence, except for a small amount. We have again had the case under consideration.

The plea of prescription is in vague terms. It is left doubtful whether it was the intention of the plaintiff and intervenors to avail themselves of the prescription, only so far as it relates to the privilege of Wiltz, or generally against his claim. These exceptions ought to be explicit and special. But it is only to the extent that the plaintiff might be affected by the debt of Wiltz, that we consider the exception. Beyond that, according to the case of Durnford vs. Clarke’s Estate, 3 Louisiana Rep., 202, the other creditors of Bredall had no right to avail themselves of it. Quo ad, the privilege of Wiltz to be paid out of the fund to be distributed, other claimants of the same fund had an interest in opposing him, and might well insist that the privilege had been lost by prescription. But if it was their intention to avail themselves of the prescription of one year, under article 3499 of the code, supposing them to have a light to do so, the party against whom the exception is set up, ought to be put on his guard, in order to enable him to show that the prescription had been interrupted.

It is, therefore, ordered, that the judgment first pronounced remain undisturbed.