Cohen v. Golding
Also decided on this docket: La. Ct. App. 1st Cir., May 4, 1970 235 So. 2d 602; La. Ct. App. 1st Cir., June 30, 1955 82 So. 2d 378; La. Ct. App. 1st Cir., February 16, 1932 139 So. 713; La. Ct. App. 2d Cir., July 14, 1931 136 So. 106; La. Ct. App. 1st Cir., November 5, 1906 4 Teiss. 28
Cohen v. Golding, 27 La. 77 (1875).
Opinion text
Wyly, J. The defendants, the sureties of George W. Avery, late sheriff of the parish of Orleans, appeal from the judgment against them for $941 85, the amount of a judgment against their principal for illegally releasing the seizure, pending an injunction, in the case of these plaintiffs v. Joseph Canall, No. 18,768 on the docket of the Fifth District Court. The seizure was released on twenty-fifth June, 1868, and within two years thereafter, to wit: On twentieth June, 1870, suit was brought againt Avery for the damages resulting therefrom; and there was judgment against him on twenty-fourth January, 1871, for $941 85. Failing to make the money on execution against Avery this suit has been brought for the amount thereof against the defendants, the sureties on his official bond. The main defense is the prescription of two years pleaded under section 3546 of the Revised Statutes, which declares that: “ The sheriffs and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses, and quasi offenses, after the lapse of two years from the day of the omission or commission of the act complained of.” It is true the defendants were not sued within two years from the day of the commission of the act complained of, but their principal, Avery, the sheriff, was, and this interrupted prescription as to them. Judicial pursuit as to the principal interrupts prescription as to the surety, and suit against the surety interrupts it as to the principal. Mellen v. Scott, 9 An. 174; Ferguson v. Glaze, 12 An. 667; 2 An. 916, 970; 5 An. 551; 14 An. 144; Revised Code, 2097, 3553. Judgment affirmed.