
    No. 8439.
    Lehman, Abraham & Co. vs. Estate of T. Mahier.
    The evidence is insufficient iu this case, under Article 2278 of the Code, to show the interruption of prescription on the note sued upon, which is that of a deceased person.
    APPEAL from the Twenty-third Judicial District Court, Parish of West Baton Rouge. Oole, J.
    
      
      Samuel B. Greues and Bravglm, Bucle & Dinleelspiel,io-v Plaintiffs ¡uid Appellants:
    1. The written evidence necessary to prove the interruption of prescription of any debt of a deceased person, as required by Article 2278, R. C, C., need not be in any particular form. It suffices if same be in the form of aletter, memorandum, or the obligation itself, (when in wilting) in an account or otherwise. 33 A. 1067; 23 A. 455; 30 A. 1263; 27 A. 70; 25 A, 511; 7 A. 201.
    2. Where the debtor in various ways, from time to time, acknowledges in writing the exist- . ence of a debt, but does not describe same so specifically as to be readily identified, it may be proved by surrounding circumstances and contemporaneous acts of the debtor and creditor. In such a case parol evidence is admissible to explain and amplify the written declaration. 33 A. 1067; 23 A. 455; 7 A. 201.
    3. Where the acknowledgment does not describe the debt, parol evidence may be introduced to show that the debtor owed, the creditor to whom the acknowledgment was made, but one debt due at the time. 33 A. 1067 ? 23 A. 455.
    4. Where the debt is secured by mortgage, the inscription of which has not prescribed, and the debtor acknowledges a debt, without stating that it is the one seoured by the mortgage, his subsequent acts of renewing the mortgage and note, when the latter is prescribed on its face, though of itself of no effect as regards the acquired rights of third persons, when taken in connection with the previous acknowledgments, is a strong cor- * roborating circumstance to show the identity of the debt, particularly when there is but one due to the creditor who receives the acknowledgment.
    
      II. II Bavrot, for Defendant and Appellee:
    Parole testimony shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability, in order to take such dehfc or liability out of prescription, or to revive the same after prescription has been run or completed *, (R. O. O. 2278, No. 2; R. S.2819; 26 A. 514; 27 A. 639 ; 25 A. 492; 24 A. 496; 23 A. 531, 549); nor to-show a date on written documents that bear no date on their face. 21 A. 350; 21 A. 456.
    The object of the law in excluding testimony is: Ifiist- To protect the heirs and legal representatives of deceased persons from the cupidity and craft of creditors, whose testimony, if admitted, could not be impeached. Second — To prevent peijury in such cases, which otherwise would be licensed by the judiciary part of the government and placed heyond the reach of punishment. Third — To cany into effect one of the Divine inspirations of the Lord’s prayer: ^ Lead us not into temptation.”
    The written acknowledgment of the debtor, in order to iuteirupt prescription, must be of a. specific debt. It should be clear and unequivocal. The eircumatancos-should be such as to justify a reasonable presumption that the debtor was willing so to change his lights and obligations under a contract for the creditor’s benefit. 9 A. 17.
   The. opinion of the Court was delivered by

Fenner, J.

In this suit, commenced by executory process, for the enforcement of a mortgage note, the administrator of Maliier enjoined, the sale of the mortgaged property on the ground, chiefly, that the note, was prescribed.

The note matured on the 1st of October, 1874, and was therefore, prescribed on 1st of October, 1879, unless the current of prescription was interrupted by acknowledgment, which, as against the deceased, debtor, can only he proved by “ written evidence signed by the party, or by Ms specially authorized agent or attorney in fact.” ' C. C. 2278.

As the judicial demand was made on August 18th, 1881, the interruption, to" he effective, must have occurred within five years'prior to that date, to wit: after August 18th, 1876.

This Court has held, in the cases of Succession of Kugler, 23 A. 455, and Tilden vs. Succession of Morrison, 33 A. 1067, that when a letter was produced, signed by the deceased debtor, acknowledging a debt, parol testimony could be received to show that there was no other debt between tbe parties than the one sued on, and, hence, that the acknowledgment must have referred to it. This is a very liberal construction of tbe C. C. Art. 2278, and we are not disposed to extend it one whit further than we have already gone.

Sundry letters written and signed by tbe deceased, Mahier, are produced, referring to some old debt, but none, within tbe prescriptive period, which mention the mortgage note. In one letter dated September, 6th, 1876, he says: I have received, yesterday, your statement, showing my indebtedness to you to be $3,468.52, which I find correct.” Witnesses testify, that tbe mortgage note was included in that statement, but tlie statement itself is not produced, and tbe terms of its inclusion are not given.

The whole testimony satisfies us that tbe transactions between Mahier and' plaintiffs were carried on in open account, extending over a series of years, and varying in the balances shown, and that the mortgage note was really held as a continuing collateral security for this account.

The acknowledgments deducible from the letters may, and probably do,, refer to the debt thus due in open account, and do not operate as an acknowledgment of the note itself, sufficient to interrupt prescription thereon.

It is sufficient to say, that this matter is left in doubt.

Judgment affirmed at appellants’ cost.  