This suit is brought on six promissory notes, amounting together in principal to $38,998 77, with eight per cent, interest per annum, from their respective maturity; all dated April 16,1860, and payable as follows:

The first on the 16th November, 1860.

The second on the 16th December, 1860.

The other four, April 12th, 1861.

The answer sets up various defences, together with p.ea of prescription.

Judgment was rendered below against the defendant, and he appealed.

The plaintiffs and appellees have not appeared in this court.

The defendant and appellant only relies in this court upon the plea of prescription.

The citation and petition were served upon the defendant, on the 18th April, 1866.

It is evident that five years had elapsed when the defendant was cited and served, and therefore prescription was acquired and the notes extinguished. C. C., Art. 3505.

Judgment rendered below, must be reversed.

It is therefore ordered and decreed that the judgment appealed from be reversed and set aside, and it is further ordered and deoreed that judgment be rendered in favor of the defendant and appellant, and that the plaintiffs and appellees pay costs in both courts.

*363On Rehearing.

In refusing the rehearing applied for in this ease, wo think it due to the counsel of plaintiffs to modify an, expression used in the opinion already rendered on the merits, to the effect that plaintiffs had made no appearance in this court.

It seems that their counsel had duly prepared and filed their briefs; which through inadvertence were placed in another record between the same parties, and in which the same briefs were also applicable, by which a double set of briefs were in one record and none in this. The counsel did not fail in their duty to their clients; but an examination of their arguments has not convinced us of any error in our conclusion.

We do not think this a cáse in which the maxim “ contra non valentem,” etc., should be applied.

Rehearing refused.