Wait Wells Wilson v. Charles A. Bannen; James P. Swain v. The Same, 1 Rob. 556

Morphy, J. A lot of goods, which arrived in this city in the ship Ocmulgee, in the autumn of 1838, was attached in these suits. Be'in and Cohen, agents of the New Orleans and Louisiana line of ships-, -to which the Ocmulgee belonged, were made garnishees. The goods levied on were sold, with the exception of one hundred and five kegs of nails, which were retained by the garnishees, to secure the payment of the freight due on the lot of goods.

Long subsequently, the plaintiffs ruled the garnishees into court, to show cause 'why they should not deliver up the one hundred and five.-kegs of nails, which they had refused to do,.-or, in default thereof, pay the full- amount of their respective judgments. Instead of appearing and showing their lien on the property, the garnishees sufFered the rule to he made absolute against them. On the execution issued against them, they delivered to the sheriff the one hundred and five kegs of hails,’ on the 15th of January, 1840. On the 29th of the same months Thomas J.

Leavitt, and others, owners' of the ship Ocmul-gee, took a rule on the plaintiffs, the defendant, and the sheriff, to shovy cause why they should not he paid by preference and privilege, the freight on the goods originally attached, amounting to $328 61, out of the proceeds of the one hundred and five kegs of nails delivered up by their agents, Bein and Cohen, in conformity with the order of the court.- ,On this rule, there was a judgment below in favor of the owners of the ship, from which the plaintiffs and defendant in these suits have appealed. _On the trial of the rule, the attorney apgpinted to represent the absent ^defendant, Bannen, filed a wr-itten answer, pleading the prescription of one year against the claim of the third opponents.

This was objected to by the latter, on the ground that the defendant had no interest in the property in dispute, and could not make such a plea. The defendant was, perhaps, without interest in the question of privilege to he debated between the other parties to the rule, but surely it cannot seriously he contended', 'that he was not interested so far as the establishment of the debt was concerned. If he succeeded in defeating the claim, it would he so much more paid to the plaintiffs in discharge~of their judgments against him.

The plea was, therefore, properly admitted, hut we can see no difficulty in disposing of it. Prescription is interrupted, and ceases to run, whenever the debtor, or the possessor acknowledges the debt, or the adverse right, against which it was running. Civ. Code, art. 3486., This acknowledgment may he express or implied. In this case, it is of the latter character.

As long as the one hundred and five kegs of nails remained in the hands of the owners of the ship, or their agents, as a pledge for the payment of their freight, no prescription- could run, because the pledge was a standing acknowledgment of indebtedness on the part of the defendant, Bannen. It began to run only from the delivery of the goods to the sheriff, and from that time, the owners of the ship had fifteen days to assert their privilege on the property, and one year to urge their claim against their debtor. Civ. Code, arts. 3213, 3499. 2 Troplong on Prescription, Nos. 534, 618, and 628.

It has next been urged, that, at all events, the privilege claimed should be allowed only for the freight due on the one hundred .and five kegs of nails, retained by the garnishees, or agents of the owners of the ship. To this we cannot listen. The -latter had the right of retaining all the goods to answer for the freight bill, and each and every part of such goods was liable for the whole debt. They were not bound to surrender any part of them until their bill was paid, or satisfactory security given.

Instead of doing this, they retained only such a portion of the goods, as they supposed to be sufficient to secure their debt. It must, therefore, be liable for the whole freight. Civ. Code, arts. 3130, 3131, and 3138. Judgment affirmed.