
    Bird v. Pate, Administrator.
    After a plea of prescription by an administrator, in an action ag-ainst him for a debt duo by the succession, it is too late to urge that tho suit was prematurely brought, he never having refused to acknowledge the debt.
    Notes payable .Co the order of minors, not being transferable by endorsement or delivery so1 long as the minority lasts, are not subject to the proscription of five years.
    Where one who is under-tutor to a minor, borrows funds belonging to him, his responsibility, so far as he holds funds belonging to the minor, cannot be distinguished from that of tho tutor; nor can tho nature of that responsibility ho changed by the form in which he may choose to put the debt.
    ¿Jreditors cannot plead a prescription which would not have availed the' debtor if pi'e’aded by him.
    from the District Court of East Baton Rouge, Penn, J.
    
      Bennett, for the plaintiff.
    
      Ratliff and Cow gill, for the appeiiant.
   The

the court was pronounced by

Rost, J.

David Pate, being the under tutor of the plaintiff and of his sister1 Adelia Bird, borrowed from their tutor..threo different sums of money, and gave for them three promissory notes payable to the order of the minors; the last of those notes bears date the 26th January, 1843, and became due on tho 4th January, 1844. To secure the payment of these loans, Pate and his wife executed mortgages in favor of the minors before the parish judge acting as notary public, and certificates of that officer that such mortgages had been passed before him, stating the sums for which they were given, and containing a lull description of the property mortgaged, were inscribed in the office of tho recorder of mortgages. David Pate died, leaving the notes unpaid, and tho defendant was appointed administrator of his succession.

Jn 1846, Adelia was emancipated by marriage, and the plaintiff was also emancipated under the provisions of the act of 1829. A partition of the succession of their father having been made between them, the notes of Pale fell to the shave of tho plaintiff, who instated the present action upon them, in which lié prays for a judgment with privilege on the proceeds of the property mortgaged, which is admitted to have been sold. The defendant pleaded the want of registry of tho mortgage, and the prescription of five years. After the case had been tried on this issue,- and judgment rendered in favor of tho plaintiff, the defendant died, and the plaintiff himself was appointed administrator of the succession of David Pate. At this stage of tho proceedings, W. D. Balear, alleging liimseif to be a judgment creditor of David Pale, took a devolutive appeal.

It is admitted that the appellant is a mortgage creditor as alleged by him; and that his mortgage was inscribed on the 21st October, 1846. It is further admitted that the succession is insolvent, and that fee proceeds of the property mortgaged are not sufficient to satisfy the-two mortgages. Under these admissions, we consider the appeal as properly before us.

It has been urged in argument thattlie suit- was prematurely brought; the administrator never having refused to acknowledge the debt. The plea of prescription filed by him is a sufficient answer to that exception-

On the merits: The last note of Pate shows that fee plaintiff and his sister were both minors at its date, which is less than five years before the service of the citation in this caso. The two first notes being made payable to the order of the minors, were not transferrable by endorsement or delivery, as long as the minority lasted, and the time elapsed since their majority is not sufficient to sustain the plea of prescription. .Besides this, Pate was under-tutor of the- minors; and, so far as he held funds belonging to them, we cannot distinguish his responsibility from that of the tutor. The nature of his-responsibility cannot be changed by the form in which he may choose to put his indebtedness. It is urged that although Pate might not have pleaded this prescription, his creditor® may. ©editors can plead no prescription which wotdd not avail the debtor, if pleaded by himslf.

We are of opinion that the amount claimed by the plaintiff is still due, but that' fee action of the court ordering that amount to be paid by privilege was premature. The judgment should have been for the amount claimed, to be classed in the general settlement of the succession; and must, therefore, be reversed.

It is ordered that, the judgment in this case be reversed. It is further ordered that the plaintiff be recognized as the creditor of the succession of DavieE Pate, deceased, for the following sums; 1st. Two thousand five hundred and-, sixteen dollars, with interest at the rate of ten per cent per annum from the 7th January, 1841, till paid. 2d. Throe thousand eight hundred and thirty-two dollars and forty cents, wife interest at the rate of ten per cent per annum from fee-7th January, 1842, till paid. 3d. Three thousand five hundred dollars, with interest at the rate of ten per cent per annum from the 4th January, 1842, till paid. It is further ordered that, the rights of the plaintiff on the proceeds of.'the property alleged to have been mortgaged to him, be reserved, and that this judgment be classed in the general settlement of tho succession. It is furfeeB' ordered that, the succession of David Pate pay the costs in both courts-  