Samuel C. Bell and another, for the use of Charles McMicken, v. James H. Mix, Administrator, 1 Rob. 393

Bullard, J. This is an action against the succession of the maker of a promissory note, hearing date the 1st of February, 1829, and the suit was instituted in 1839. The administrator pleaded a failure of consideration, and the prescription of five years. The plea of prescription was sustained, and the plaintiffs appealed. It is contended in this court, as it was without success in the court below, that the prescription was interrupted by a suit brought upon the same note before the five years had elapsed.

It is shown that in 1831 suit was brought; that the defendant prosecuted an appeal to this court, and that the judgment was rerversed ; and that after a second appeal, the case terminated by a nonsuit. See 3 La. 447. 10 Ib., 514. This is clearly an interruption of the prescription. The parties were substantially the same, the only difference being, that, in the present case, the action was brought by Bell and another for the use of McMicken.

The plaintiffs had a right to give \yhat destination they thought proper to the fund when collected, and the defendant has not pleaded that the note belonged exclusively to McMicken. No objection is made to the form, of the present action, and the defendant cannot complain ihat the form of the action enabled him to avail himself of any defence, either against the Bells or McMicken. 17 La., 213. Civ. Code, 3484. J. R. Thomas, and J. P. Bullard, for the appellants. Boyle, for the defendant.

The evidence does not satisfy us that the consideration for which the note was given has failed; and its. due execution is admitted. The plaintiffs are therefore entitled, in our opinion, to have their claim against the estate of Williams acknowledged, one to be paid concurrently with the other creditors in the due course of administration. Code of Practice, arts. 986, 987.

It is therefore ordered that the judgment of the Court of Probates be reversed, and the plea of prescription overruled; and it is further adjudged, that the plaintiffs recover of the estate of Williams fifteen hundred dollars, with interest at ten per cent from the 1st of February, 1830, until paid, subject to a credit of one hundred and eighteen dollars and twenty seven cents on the 15th March, 1832, to he paid concurrently with the other creditors in due course of administration, together with costs in both courts.