
    No. 2100.
    Daniel & J. D. Edwards v. W. C. Harrison et als.
    If prescription has not been pleaded it will not be noticed by the court on suggestion in argument.
    If the appeal was taken for dday only, damages will be allowed the appellee as for frivolous appeal.
    APPEAL from the Fourth District Court, parish of Orleans.
    
      Théardr J. Maurice Grivot, for plaintiffs and appellees.
    
      Randolph, Singleton c6 Browne, for defendants and appellants.
   Howell, J.

Defendants, who are the captain and owners of a. steamboat, have appealed from a judgment with privilege lor the amount of two notes, given for work and materials furnished and done on the said steamboat. They suggest in their brief that there is. error in granting a privilege as there is no evidence to show that the claim originated within the time fixed for the expiration of such privilege by article 3237, Civil Code, or the act of 1858, p. 111. To this-the successful reply is that prescription is not pleaded, and tlie court, can not supply it. C. C. 3463, 3464. The defense is a simple general denial. Interrogatories were propounded to defendants to prove the debt and its nature, which were answered affirmatively. The appeal was taken in January, 1869, and its purpose seems to have been delay. The prayer for damages must be allowed.

It is therefore ordered that the judgment appealed from be affirmed,, with eighty dollars damages and costs of appeal.  