McDuffie v. Douglas , 1 Gunby 56 ( 1885 )

Farmer, J.

Where an exception is filed that plaintiff has abandoned a former injunction, and instituted this suit without paying the costs of the prior suit, and no evidence is taken on the trial of the exception, it will be overruled.

2. The direct revocatory action must be resorted to by an injured creditor to annul any real contract of the debtor, however fraudulent it may be. 33 An. 29; 30 An. 374. But where such contract is attacked collaterally, the party interested may waive his right to object, and contest by way of injunction all tbe questions that could be raised in a direct action. 15 An. 532.

3. The revocatory action is prescribed in one year from the date of the creditor’s judgment, or in one year from the date of the fraudulent contract, if it be made after the rendition of the judgment. C. C. 1987.

4. Where a plea of prescription is filed in the lower court, after the evidence is closed, if defendants wished to introduce evidence to interrupt prescription, they should have asked for a new trial on that ground. They are not in an attitude to require the application of C. P. 902.

5. To support a giving in payment of cattle, the burden of proof is on plaintiff to show’ a fixed price and actual delivery. Constructive or symbolic delivery is not sufficient in such a case.