
    No. 895.
    A. B. James v. Fellowes & Co.
    Where the facts show that the succession of a deceased person-has not been opened, nor is it pending in the Second District Court of New Orleans, while a case is pending in one of the other District Courts against the deceased party, commenced before his death, the Second District Court is not vested with exclusive jurisdiction by the act of the Legislature of 1864, which provides that the Second District Court shall be strictly a probate court. Session Acts 1864, page 85, § 17.
    A garnishee or third party to whom interrogatories are propounded under a fieri ficvis, can set up any defence necessary to his own protection, whether against the defendants or their creditors. He is competent to urge the plea of prescription.
    Prescription does not run on a commission merchant’s account, consisting entirely of paid acceptances and promissory notes, with commissions and interest added upon each separate item of the account, bub the account as a whole is prescribed in three years. Statute of 1852, p. 90. 14 A. 705.
    ON REHEARING — MR. JUSTICE HOWELL:
    Where a commission merchant’s account has been rendered, showing that a balance has been struck between the parties, and an acknowledgment by the debtoi of its correctness, though made verbally, it becomes, from that moment, a closed account, and is a personal debt between the parties, prescribed only by the lapse of ten years from the date of the acknowledgment.
    APPEAL from the Sixth Dish-ict Court of New Orleans, Buplantier, J.
    
      P. H. Morgan and J. II New, for plaintiff and appellee.
    
      G. T. Pemis and Hyams & Gordon, for garnishees.
    
      
      Reporte)'. — A rehearing was granted in this case. Mr. Justice Howell, the organ of the Court, overruled the first opinion, and decided that, in this case, the account sued on is taken out of the limitations of the statute of 1852, on the ground and for the reason that it having been shown that the account had been rendered by one of the parties to, and acknowledged orally by the otlu r, which constituted a closed account, and created! a personal debt between the parties, which is only prescribed by ten yeprs,.,
   Ilsley, J.

The plaintiff, having obtained in the Sixth District Court'of New Orleans a final judgment against the defendants, caused to-be. issued from said Court a writ of fieri facias, and took out from the same Court a garnishment process against the executor, the widow and son of-, the late Alexander Gordon, and, also, against the Mexican Gulf Rail Road ■ Company, all representing the estate of the said Alexander Gordon, and prayed for judgment against the garnishees to the amount of his judgment-claim against the defendants. «

After judgment had been rendered against the garnishees, they filed an exception to the jurisdiction of the Sixth District Court, the ground of which was that the Second District Court was the only tribunal that could take cognizance of the matter in controversy, quoad the estate of Alexander Gordon; but the lower Court overruled the exception as coming tob late, deeming its jurisdiction, if at all incompetent, only so ralione persona, and not ratione materia. . ,

Had the Sixth District Court jurisdiction in the premises ? is the first question to be solved.

Previous to the year 1853, all the District Courts in New Orleans had concurrent jurisdiction over probate matters inthe parish of Orleans.

In the years 1853, 1855 and 1864, exclusive jurisdiction in probate matters was conferred upon the Second District Court of New Orleans. See Act of 1846, No. 43, p. 32; Act of 1853, No. 190; Act of 1855; Act of 1864.

By the last Act of 1864, p. 84, section 8, it was provided: “That the.. Second District Court shall be strictly a probate court, and shall have exclusive jurisdiction only of all succession and probate causes,” etc., etc. But it was in the same act, section 17, further provided, that this act shall take effect from and after its passage, but shall not apply to the cases now pending or filed before the several District Courts, and that all laws on the same subject-matter, or contrary to the provisions of this act, are repealed.

It is proved satisfactorily that the succession of Alexander Gordon was not opened, nor was it pending in the Second District Court; so that, by the 17th section of the act of 1864, the said District Court had not exclu-’ sive jurisdiction over the matters in controversy between the plaintiff and the garnishees.

The main defence of the garnishees against the claim of the defendants, Fellowes & Co., against them, is that it was prescribed when garnishment process was taken out against them; and it was certainly competent for them to set up that or any other defence necessary to protect their own interest, -whether against the defendants or their creditors. 3 An. 380.

The prescription pleaded, is that of three years against the account current presented by Fellowes & Cb. to the garnishees.

It was a factor’s, or commission merchant’s account, and consisted entirely, except for commissions, etc., of paid acceptances and of promissory " notes.

This Court lias deemed such items as the component parts of one account, which is to be regarded as a whole, and that acceptances charged in it, being fundi officio, are only vouchers, and that to such accounts, the prescription of three years applies. See Succession of Guillemin, 2 A. 634; Toledano vs. Gardiner, 2 A. 779; Andrew vs. Keenan, 14 A. 705.

The account was prescribed in 18C5, when suit was brought under garnishment process, unless the verbal acknowledgment of its correctness, made by the representatives of the estate in January, 1861, suspended prescription; which it certainly did not; for, had the acknowledgment been in writing, it would merely have interrupted prescription, which would commence running anew from that time.

As sufficient time subsequently elapsed before any further action on the part of Fellowes & Co., or any one else, was had, the claim is therefore prescribed. Succession of Dubreuil, 12 B. 507.

It is therefore ordered, adjudged and decreed that the judgment against the garnishees be annulled, avoided and reversed, and that judgment be and it is hereby rendered in favor of the garnishees and against the plaintiff, with costs of garnishment in both courts.

On Beheabing.

jlLowelXi, J.

This case is on a rehearing, granted on the question of prescription. To solve this it is necessary to determine whether the account against the garnishees is an open account, and subject to the prescription of three years, or an account closed, and prescribed, as a personal debt, by ten years.

Prior to the act of March, 1852, (p. 90,) such accounts were prescribed by the lapse of ten years. This statute, after declaring that the accounts of retailers of certain articles, and those of all merchants, wholesale and retail, shall be prescribed by three years from the time the articles are furnished to the purchasers, provides, that “all other open accounts, the proscription of which is ten years under existing laws, shall be prescribed by three years.”

If the account, in this case, is an open account, it is prescribed, for three years elapsed before suit or other interruption. Its caption is: “In account current,” which is defined to be “a running or open account.” Bouvier, verbo, Account Current. But it contains a series of debits and credits for sometime, and a balance is struck and carried down, showing a specific sum in favor of the merchant. This, it is shown, was presented to the debtors.

“ The settlement of an account between the parties, by which a balance is struck in favor of one of them, is called an account stated. ” Bouvier, verbo, Account Stated.

At common law, ‘1 where an account has voluntarily been stated between partus, an action of assumpsit may be maintained thereon.” Id., verbo, Account, No. 9. 4 Dallos, 434. 2 Gr. Ev., $34-39. “The count upon an account stated, is supported by evidence of an acknowledgment, on the part of the defendant, of money due the plaintiff, upon an account between them.” “ The acknowledgment by the defendant that a certain sum is clue, creates an implied promise to pay the amount.” “ The stating of the account is the consideration of the promise.” Id., verbo, Account Stated. There is a concurrence of minds upon an agreement to pay the amount stated. We can nowhere find where the law requires this settlement and acknowledgment on the part of the debtor to be in writing.

We are referred to two cases in our Reports, (Lafon’s Heirs v. His Executors, 3 N. S. 716, and Chevalier v. Hyams, 9 A. 484,) in which it is announced that a formal written recognition of the claim in a compié arrélé is requisite. Conceding these cases to be in point, the Court was giving the interpretation of the French text of the Code; while it is well settled that the English text must prevail. If a verbal acknowledgment be of any effect in law, we cannot see why that effect should be less than that of a written acknowledgment. The only difference, is as to the evidence to be adduced to prove the acknowledgment. Nor do we think the 985th Art. C. P., or the act of 1858 relating to written acknowledgments, applicable to this case, as the debt here was contracted by the parties themselves who are made garnishees, and not by a deceased or third person.

We have come to the conclusion that the account in this case, which has been rendered and acknowledged orally by the appellants, is no longer an open, but a closed, account, and is a personal debt, and prescribed by ten years.

It is therefore ordered that our former decree herein, be set aside, and the judgment of the District Court be affirmed, with costs.  