The plaintiff, alleging himself to be a creditor of the estate of - Cady Raby, for the sum of two hundred and fifty dollars and twenty-five cents, with five per cent, interest thereon, from the 5th of July, 1831, (as is shown by a judgment rendered October 26,1831,) and that the heirs of Cady Raby and Diana Cornelius, are about to make a final partition of their estates, he prays that said partition be so amended as to set apart a sufficient amount of property, or the proceeds of the sale of said property, to pay said judgment.
To this demand, the heirs plead the prescription of five, ten, twenty and thirty years.
The action in this case is a personal one, and is prescribed by ten years. C. C. 3508.
“Whenever it becomes necessary to institute a separate and distinct action from the one in which the judgment was rendered, the prescription of ten years is applicable under Article 3508 of the ’ Civil Code. To avoid this prescription, the creditor must be in a condition to enforce the collection of his judgment, without the aid of an original suit.
It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs in both courts.
Merrick, C., J., being a creditor with another upon the tableau, declined taking part in this case. Voorhies, J., absent.