delivered the opinion of the court.
This suit commenced by attachment; on the day after it was sued out, the plaintiffs filed their petition, claiming five hundred and ninety-two dollars and seventy-five cents, on a note of defendant to their order. An attorney was appointed to represent the absent defendant, who filed a general denial. Judgment being rendered in favor of plaintiffs, the attorney for defendants appealed.
In this court, two points are made :
1. That the attachment was illegally obtained, because the affidavit does not allege the debt to be due.
2. That the debt is prescribed.
I. One of the plaintiffs swears that defendant is really indebted to the firm in the sum of five hundred and ninety-two dollars and seventy-five cents, and that he resides out of the state of Louisiana : the expressions used by the affiant do, in our opinion, convey the idea of a debt actually due and payable, not one debitum, in presentí, solvendum in futuro : In point of fact, the plea of prescription, set up by the appellant, shows how the debt stood in relation to its maturity.
II. Prescription not having been pleaded in the inferior court, the appellee claims, and we think he is entitled to have the case remanded for trial on this plea, Code of Practice, article 992; and as the judgment appealed from would *431be affirmed, but for this plea, it appears to us that the costs of this appeal should not be borne by the appellee.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Commercial Court be avoided and reversed, and it is further ordered, that this case be remanded, to be proceeded in according- to law, the defendant and appellant paying the costs of this appeal.