
    No. 1648.
    S. Durbin v. E. & L. Spiller.
    Where the holder of a promissory note has failed to bring suit until after prescription has obtained, and the evidence shows that he might have brought suit at any time for several months previous, the plea will be maintained, 20 An. page, 131.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.
    
      E. J. Ellis, for plaintiff.
    
      Thos. G. W. Ellis, for defendant.
   Howell, J.

Defendants have appealed from a judgment against them as makers of a promissory note, bearing ten per cent, interest from its date, and due on the 31st January, 1861, to which, among other defences, they set up the plea of prescription,

Citations were served on 3d October, 1866, and consequently prescription had been acquired, unless interrupted. To show an interruption and suspension, plaintiff proved that the defendants were, for sometime, in the rebel army, and that when exceptions were filed by soldiers in said army, because of being in the said service, the suits against them were dismissed.

No suit was brought by plaintiff against these defendants, although they were most of the time in their parish.

These facts do not establish a legal interruption or suspension of prescription. Service at any time might have been made at the respective domicils of the defendants; and besides, suit might have been brought during a period of sixteen or seventeen months after the close of the war, before it was actually brought. The plea should be maintaind.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, with costs in both courts.  