
    J. D. Comaux v. Rosalte Doiron and Fergus Clement.
    In a redhibitory action, the plea of prescription will be maintained if the term for bringing the suit has elapsed, although a demand is made in the petition that a note given as part of the price should be cancelled and annulled.
    from the District Court of the Parish of East Baton Rouge, Wilson, J.
    
      J. McCutchen, for plaintiff and appellant. T. G. Morgan, for defendants.
   Merrick, 0. J.

This is an action of redhibition. Among other defences, the plea of prescription of one year is filed.

The sale was made of the slave on the 31st day of Januai’y, 1857. Service of citation was made February 4th, 1858. To avoid the effect of the plea, the plaintiff avers that the defendants had knowledge of the redhibitory vice, and concealed the same at the time of sale. 0. 0. 2512, 2523, 2524.

There is no sufficient proof of such knowledge in the record.

Again, it is contended, that inasmuch as the plaintiff demands that his promissory note given as a part of the price should be cancelled and delivered to him, that the action ought to be maintained to this extent, because defendant can make his defence to an action upon the note available, whenever he is sued upon the note.

"We cannot disregard the forms of proceeding in this manner. The plaintiff is the actor, and the law says his demand as such is prescribed. It will be time enough to consider what his rights are as a defendant, when he is sued upon the note.

Judgment affirmed.  