LACKEY

v. MACMURDO.

one before the court. "Where the attorney of the plaintiff, meeting one of the defendants, observed to him that the plaintiff's account against them was in his hands to which such defendant replied, that it was one of the old copartnership debts; the plaintiff ought to do with it as the other creditors had done-accept fifteen cents on the dollar; he would pay that at any time." Held: That this was an acknowledgment of a debt still due. Austin v. Bostwick, 9 Conn. R. 496. U. S. Digest, vol. 2, p. 818, No. 587.

Elmore & King, for defendant and appellant:

The most that can be said is, that if the holder of the note had accepted defendant's offer to pay fifteen cents on the dollar, that he, defendant, would have been bound so far as that amount was concerned, and no further; and the offer having been refused, it had no effect. See 2d vol. U. S. Digest, p. 816, Nos. 535-8, 546-7. In Tyson v. McGill, 15 L. R. 145, defendant told plaintiff's counsel, that "he would pay the note if long time enough was given him." The Court said: "The conditional offer made by defendant, in a conversation with plaintiff's counsel, does not, in our opinion, amount to a new promise which entitles plaintiff to recover."

The judge of the lower court admits, that the acknowledgment of a debt would not be sufficient to renounce a prescription already acquired; but says it is sufficient to interrupt prescription. Insisting that the acknowledgment which would interrupt prescription may be of a much weaker and less distinct character than one which would be necessary to renounce prescription. This proposition we earnestly protest against. The law makes no such distinction, and we do not think that there is any reason for such a distinction. Upon the contrary, we say, that the acknowledgment to renounce prescription need be no stronger than the acknowledgment to interrupt it. Whilst we say this, we admit that there may be a difference in the mode of proving the acknowledgment, as well as the effect it will have upon the party making the acknowledgment, and upon others. This is fully explained by Pothier, Nos. 665–6–7. See 2d volume of Troplong on Prescription, sec. 613, p. 152.

We find no decision in our Reports, that recognizes the distinction upon which the court below decided against the defendant. Blossman v. Mather, 5 An. 340. C. C. 3486.

SLIDELL, C. J. This suit was brought in February, 1853, upon a note made by the firm of A. L Addison & Co., dated 24th May, 1845, and payable one year after date.

It is proved, that the defendant was, at the date of the note, a member of the firm of A. L. Addison & Co.; that the firm name was signed by him; and that they had compromised most of their debts at fifteen cents on the dollar. The defence rests entirely on the plea of prescription; and the only question to be determined is, whether an interruption of prescription has been proved. The reliance of the plaintiff is upon a conversation had between Macmurdo and a witness, who was sent to him in November 1848 to ask payment of the note, or obtain some settlement from him. The substance of the witness' testimony is, that when he exhibited the note, and asked the defendant what he would do in regard to it, the latter answered he would not pay it; that it was a debt of A. L. Addison & Co.; that they had compromised nearly all their debts at fifteen cents on the dollar; that he was willing to pay that amount on the face of the note and take it up, but that he would not pay any more. On further examination, the witness said he could not state whether the defendant used the word debt or note, or indeed whether he used either, when alluding to it as one of the obligations of the old house of A. L. Addison & Co.

In treating of the causes which interrupt prescription, the Code says: Prescription ceases likewise to run, whenever the debtor or possessor makes acknowledgment of the right of the persons whose title they prescribed, or as is expressed in the French text, which is taken from Article 2248 of the Napo

leon Code: La prescription est interrompue également par la reconnaisance que le débiteur, ou la possesseurs, fait du droit de celui contre lequel il prescrivait.

In estimating the effect to be given to the conversation above mentioned, it is proper to consider what is the effect of an interruption. The effect would be to destroy the consequences which otherwise would have resulted from the lapse of time between the maturity of the note and the date of the conversation, that is to say, the note being subject to the prescription of five years, and more than two years of this time having already run, if there was an interruption, its effect would be to give a new date as the starting point for the cause of prescription; so that the note would be prescribed, not in five years from the 27th of May, 1846, which was the original condition of the contract, but in five years from November, 1848. As, therefore, the alleged interruption practically affects the rights and obligations of the parties to a contract, it is reasonable to require, then, the proof of an assent to such a change on the part of the debtor, should be clear and unequivocal. It is not indeed necessary that the assent should be express; it may be inferred. But the circumstances should be such as to justify a reasonable presumption that the debtor was willing so to change his position for the creditor's benefit.

Applying these principles to the case before us, we are not prepared to say that an assent to the interruption of prescription, clearly results from what was said by the defendant. We consider the conversation, taken as a whole, as a proposition, by the defendant, to buy his peace, as an offer of partial payment, upon condition that the note should be given up to him, which proposition was declined by the debtor, and so the position of the parties remained unchanged. It does not appear to us to amount to such an "acknowledgment of the right" of the creditor as the Code contemplates.

We have looked into the cases in our own Reports, cited by the plaintiff, and do not think they cover the case before us. A brief review of them will show the difference.

In Carraby v. Navarre, the court deduced the acknowledgment which interrupted prescription, from a request of indulgence, coupled with the expression of the debtor's expectation of receiving, from a certain source, a sum which would enable her to pay the debt, to which request the creditor seems to have assented. 3 La. 263.

In Lafourcade v. Barran, 8 La. 283, the testimony was, that the debtor had stated the debt was a just one, and had asked the creditor to wait, and from time to time made promises that he would pay when his wife's estate should be settled; when his wife's property should be sold, &c. Martin, Justice, in affirming the judgment of the district court, who had held there was an interruption of prescription by reiterated promises, observes: "Interruption by an intermediate promise and assumpsit is alleged on the part of the plaintiff, and, as believed by the court below, was fully proven; and from an attentive examination of the evidence, our minds have been brought to the same conclusion."

In Shiff v. Hertzog, 12 La. 456, the debtor speaks, in his letter, of the note as one 'dont je vous suis redevable,” which I owe you; says his other creditors have given him, some years previous to the date of his letter, a delay of nine or ten years without interest, and his duty to them obliges him to postpone the plaintiff's claim for a like period, and hopes he will consent to the

LACKEY

v.

MACMURDO.

arrangement. The creditor does not appear to have declined the offer; and brought suit at the expiration of the proposed delay.

In Montgomery v. Levistones, 8 Rob. 147, there were payments made out of the hire of certain slaves left in the possession of the creditor by the debtor, and this possession was considered a standing acknowledgment on the part of the defendant of his indebtedness. So far as the decision in the case rests upon another and independont ground, the letter of defendant mentioned in the opinion, we might hesitate in giving it our concurrence. It seems to conflict with the subsequent case of Blossman v. Mather, 5 An. 335. But at all events there was no declaration of the debtor, that he would not pay anything unless the creditor submitted to a reduction.

In Parker v. Bernard, 9 Rob. 19, the prescription was held to have been interrupted by partial payments, which do not appear to have been tendered or received with any qualification whatever. It was a clear case of interruption.

In Butler v. Ford, 9 Rob. 113, the evidence showed that a few months before the suit was brought, the debtor, who was a surety, not only acknowledged his creditor's right to be paid, but promised expressly to pay if his principal did not.

As our law of prescription and statutes of limitations in common law States have their points of difference, we think it most safe to rely upon our own jurisprudence and the principles of the civil law in matters of prescription.

It is therefore decreed, that the judgment of the District Court be reversed, and that there be judgment for defendant; the plaintiff paying costs in both

courts.

VOORHIES, J., BUCHANAN, J., and CAMPBELL, J., concurring.

OGDEN, J., dissenting. The note sued on is in the hand-writing of the defendant, who was a member of the firm of A. L. Addison & Co., whose signature it bears. The offer of the defendant, when the note was presented to him for settlement within the period of prescription, to pay fifteen cents on the dollar, as a composition of the debt, on the same terms which had been accepted by most of the creditors of the firm of A. L. Addison & Co., in my opinion, amounts to a sufficient acknowledgment to interrupt prescription. It seems to me, such an offer could not be made without acknowledging the debt If it had been an offer to pay fifteen cents on the dollar, unaccompanied by any reason or explanation for making the offer; or if any other reason had been assigned than the inability of the firm to pay more, it would, or not, according to the circumstances, have amounted to an acknowledgment of the debt. But I think, when a debtor proposes to compound with his creditors by paying them a certain per centage on their debts, he makes an explicit acknowledgment of the amount due to them. If the prescription had been already acquired, such an offer could not be held to be a renunciation of the right to plead prescription; but there is a difference between the acknowledgment of a debt sufficient to interrupt prescription and the renunciation of prescription after it is complete. The acknowledgment rebuts the presumption that the debt is paid and interrupts the prescription which had commenced running. The renunciation of prescription when once acquired, is equivalent to a new promise, and if conditional, is not binding unless the condition is accepted. The case of Tyson v. McGill, 15 L. R., relied on by the defendant's counsel, where the debtor said, "that he would pay the note if long time enough was given him," must have been, I think, from the report of the facts, a case where

the prescription had been already acquired. The case cited on the part of the plaintiff, of Austin v. Bostwick, 9 Conn. R. 496, is the only adjudicated case I have been able to find exactly analogous to the present one, and there, under precisely the same state of facts, it was held, that the case was taken out of the statute of limitation.

The judgment of the court below, in my opinion, ought to be affirmed.

LACKEY

V.

MACMURDO.

CHARLES ROMAN and C. H. KERNION v. L. E. & F. J. FORSTALL. Defendants opposed a rule taken to homologate the report of auditors. The Court decreed that the sale be made absolute, and that the report of the auditors "be homologated and adopted as the basis of the judgment of the Court in the premises." Held: That defendants had a right after the decree homologating the report of the auditors, to have the cause set down for trial on the merits. The judgment was not final; it was irregular in the Judge to sign it, but being merely interlocutory, the appeal was premature.

A

PPEAL from the Fifth District Court of New Orleans, Buchanan, J. Roselius, for plaintiffs. Hunton & Bradford, for defendants and appellants. OGDEN, J. This case was referred to auditors to settle between the partners, the affairs of the commercial firm of Roman, Forstall & Co., of which the plaintiffs and defendants were the members. On the report of the auditors being made and returned into Court, and a rule taken by the plaintiffs to have it homologated, the defendants filed an opposition setting forth various grounds of special exception to the report, all of which, on the trial of the rule, were decided adversely to the defendants, and the Court proceeded to homologate the report of the auditors. The decree is in the following words: "For the reasons this day filed, it is adjudged and decreed, that the rule taken herein by the plaintiffs be made absolute, and that the report of the auditors of accounts herein filed on the 26th of March, 1851, be homologated and adopted as the basis of the judgment of the Court in the premises." The first question presented for our consideration by the defendants who have appealed from the judgment as above rendered, is, whether it was competent for the Court below to render a final judgment in that manner on a rule to homologate the report of the auditors.

We are of opinion that there was no final judgment rendered in the cause; that the defendants had a right after the decree or order homologating the report of the auditors, to have the cause set down for trial on the merits; and it does not appear from the record, that the Court below refused any motion on application to that effect. Not being a final judgment in the case, it was irregular in the Judge to sign the decree, but considering it as we do merely interlocutory, and having only the effect of homologating the report of the auditors, we cannot take jurisdiction of the appeal which is premature.

It is therefore ordered, adjudged and decreed, that the appeal be dismissed at the costs of the appellants.

JUDSON & Co. v. N. HOLMES et al.

The law does not require the holder of a promissory note to prove the circumstances under which he obtained possession of it, except where the want or failure, or illegality of the original consideration is clearly shown, and in case of a lost or stolen instrument.

A

PPEAL from the Fourth District Court of New Orleans, Reynolds, J. Hoofman & Ogden, for plaintiff's. Hanly, for defendants. BUCHANAN, J. This is a suit upon a promissory note by endorsee against maker and endorser. The defence is want of consideration, and that the note was fraudulently sold and conveyed to plaintiffs, at an enormous discount, by one Jones-a man of notoriously bad character, and well known as such by plaintiffs-which Jones was without any interest in the note at the time of the transfer. The only evidence offered by defendants, is a witness named John C. Mosely, who testifies, that he was present when the note was signed by defendant, Holmes, "endorsed by him and Waterman, and given to Jones for the purpose of buying a vessel-the note to be given to Mr. Hughes by Jones; Jones did not go to buy the vessel according to promise; Jones was instructed to carry the note to Mr. Hughes for the purpose of paying for the vessel; the one-half of the vessel was to belong to Mr. Holmes, and Jones was to buy the other half; the note given to Jones was to pay for Holmes' half; Jones had no property in the note." No evidence is given of the circumstances under which the note came into the hands of plaintiffs-although the protest shows it was held by them at maturity. Judgment having been rendered against the defendants, they moved for a suspensive appeal. The bond of appeal is in the name of Holmes alone, as principal, from which we infer that Waterman has abandoned his appeal.

We think that the evidence does not support the plea of the defendants. The testimony of Mosely not only proves that there was a consideration for the note, namely, a contemplated purchase of a vessel, but that Jones-who is described in the answer to be "a man of notoriously bad character, and as such well known to the plaintiff"-was in fact the agent and prospective partner of the appellant. We are told by the witness, to be sure, that Jones did not go to buy the vessel according to promise, and we are left to infer that Jones negotiated the note with the plaintiffs for his own account, and in fraud of appellant; but this is mere matter of inference. From very vague and unsatisfactory premises, one thing strikes us as deserving of attention in the connection. The note was payable ninety days after date. The defendants, the party (Hughes) to whom this note was intended to be conveyed, Jones, the agent of defendants, and the plaintiffs, all resided in New Orleans. If the note was divested of its legitimate destination by Jones, that fact must have been immediately known to appellant, by his failing to get possession of his vessel, which he expected to buy with this note. In the three months which intervened before the maturity of the note, the defendants had ample time to warn the public against trading for or negotiating the note. We think the defendants should have taken some such steps, and that their neglect to do so, absolves plaintiff's from the obligation of proving the circumstances under which they obtained possession of the note-a kind of proof very hard to make; and which the law only requires, in cases where the want or failure, or illegality of the original consideration of the instrument, is clearly