The opinion
Srofford, J.
The defendant pleads the prescription of five years to an action upon a negotiable promissory note.
The only question is, has prescription been interrupted ? The District Judge decided that it had not, and the plaintiff has appealed.
In a suit brought by the deceased, George Elliott, against Bryce Elliott, (the present plaintiff,) in 1851, for the supplement of the. price of a plantation, the latter pleaded in reconvention a promissory note, said to be the note now sued on. But, by a consent judgment, the suit was dismissed. This was a voluntary abandonment or discontinuance of the reconventional demand, and, so fer as its mere institution is concerned, the interruption is considered as never having happened. O. O. 3485.
But it is said that Bryce Elliott’s answers to interrogatories propounded to him by the plaintiff in that suit, herein represented by Brown, executor, did interrupt prescription. He was not interrogated as to the note now in question, but upon quite other and distinct matters. But he added to his last answer the following statement: “ I also hold a note of ten thousand dollars against plaintiff, after paying $15,000 for him.”
This is no more an acknowledgment of the debt by George Elliott, than was the admission testified to by the witness, Tafkington, offered by the plaintiff in the present suit. TarJcington says, “ that he has heard George Elliott say, within the last five years, that Bryce Elliott held a. note against him, but did not acknowledge that he owed the note or state the amount, but, on the contrary, stated that Bryce Elliott was largely indebted to him.”
There must be an acknowledgement of the c%editor’s right. O. C. 3486. An admission by the alleged debtor that a third person holds a note against him, is not, of itself, an admission that he justly owes to such person the amount of the note.
Judgment affirmed.