
    
      TREMOULET vs. CENAS' HEIRS.
    
    Appeal from the court of probates of the parish and city of New Orleans.
    who htTre-neyon anex-ecution, can** the prescription of five years.
    The delay °f a demand during seyen y,ears» and the oírcum-d”btS1 accra-⅛⅞ outds,mdud-⅛⅞⅛/ ⅛⅞ outds,mdud-⅛⅞⅛/ sche-e, are not evidence of payment.
   Martin, J.

delivered the opinion of the m» i . ./y, _ court. 1 he plaintiff claims from the heirs of a late sheriff, a sum of money which came to J that officer’s hands on an execution which the present plaintiff had put .into his hands. The pleas were prescription and payment.

There was judgment for the plaintiff, and the defendant appealed.

The case is perfectly similar to that- of De- . . ‘ lasize against the present defendants, determined in this court at June term, 1826, vol. 4, 508.

To support the plea of prescription, the old civil code, 481, art. 78, js relied on. By this article, the arrears of all sums of money, payable by the year, or at shorter periods, are prescribed by the lapse of five years. The r _ counsel urges that as the sheriff was bound to ■ , , , . J' , 7 pay the money claimed immediately, the money was payable at a shorter period than one one year; ergo, the prescription attaches. It is clear that this article of the code applies only to sums payable by annual, semi annual, quarterly, monthly, or daily rates; otherwise, it would apply to every debt at maturity.

The plea of payment is based on a presumption arising from tn o circumstances—the first is, that the money was received by the sheriff in 1809, and no claim appears to have been made till 1826; the second is, that in the meanwhile, the plaintiff offered a cession of his goods, and in the schedule annexed to the petition, no mention is made of the present claim.

To this it is urged that a plaintiff is not warned by the plea of payment, of the necessity of establishing a demand anterior to the petition, and that the plaintiff was ignorant of his right against the present defendants, believing that their ancestors were discharged by the payment made under an ex aparte order, and did not discover his error till after the decision of this court in Delasize’s case.

We are of opinion that both pleas were correctly determined in favor of the plaintiff

De Armas for the plaintiff, Christy for the defendant.

It is therefore ordered, adjudged and de-J ° creed, that the judgment of the court of pro- , , m t • i bates be affirmed with costs.  