
    R. D. Blossman v. Thomas Mather.
    Where a debt has been due for the lapse of time necessary to bar it bj prescription, and there is no evidence justifying the presumption of the relinquishment right acquired to plead prescription, that plea must prevail.
    If a debtor abandons his residence for the purpose of avoiding the pursuit of his creditors, prescription does not run in his favor.
    The fact that a bill is dated at New Orleans, in the absence of any proof as to the place of acceptance, raises the presumption that it was accepted in New Orleans.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
      A. A. Mellaerts, for plaintiff,
    contended, in reply to defendants counsel: Defendant does not refute plaintiff’s argument to show that prescription was suspended for several years by the non-residence of the defendant. He contents himself by saying, that “ your honors have repeatedly decided, that the prescription applicable to bills of exchange, promissory notes, &e., as established by arts. 3505 and 3506, does run in firvor of the absent debtor, and that no suspension of its course takes place by reason of the absence of the debtor.” And he cites 3d Ann. 508, Hatch v. Gilmore, and Luncan v. Ford, decided same day, but not reported; McMaster v. Mather, 4th Ann.; and goes on to say, that “ there is nothing in this case to distinguish it from those cases.”
    I do not find in the cases cited any such general rule laid down by the court. On the contrary, in Hatch v. Gilmore your honors say, speaking of the maxim, contra non valentcm, “ it is not our purpose, on the present occasion, to attempt to lay down any rules for its application, except so far as is indispensable for the case before us. To do so would be a task not free from difficulty ; and it is better to leave various cases as they arise to be considered upon their proper merits.” The case at bar differs entirely from any to be found in our reports. This is a suit brought against the acceptor of a bill of exchange. The bill is drawn in Mississippi, addressed to the drawee at New Orleans, and accepted by him in New Orleans. The defendant, in his brief, says : “ it is admitted that the defendant, at the time of the creation of the debt, resided out of this State, at a place called Tchula in the State of Mississippi, and that he continued to reside there until some time in 1844, when he removed to this city and made it is residence for about eighteen months.” This is a mistake. The admission in the record, is, that “ the defendant resided out of the State of Louisiana* from the time the bill fell due to some time in 1844, and that from some time in 1844 the defendant resided in New Orleans for about eighteen months, and that after that he went to Mexico, and has not resided in Louisiana since.”
    
      Hatch v. Gilmore w'as a suit against the endorser of a promissory note, dated at Vicksburg, Mississippi. The defendant continued to reside there more than five years after the maturity of the note, and the court say, “ in the absence of evidence to the contrary, it is presumed that the defendant endorsed the note in Mississippi.”
    
      
      Duncan v. Ford (not reported,) was decided on the reasons assigned in the preceding case. It was a suit against the endorser of a bill of exchange, drawn at Vicksburg, Mississippi. Both plaintiff and defendant resided in Mississippi.
    
      McMaster v. Mather was a suit on a promissory note, subscrided in New Orleans by E. Morehouse, the partner of the defendant in the name of the firm of Morehouse Sf Mather. In McMaster v. Mather the obligation was, indeed, contracted in New Orleans, but the case is distinguishable from that at bar, in this : that in McMaster v. Mather the defendant did not himself contract the obligation, he may have been ignorant of its existence; whilst in the case before the court the obligation was contracted in New Orleans by the defendant, in propria persona.
    
    
      Tyson v. McGill, 15 L. R. 145, not cited by the defendant, was a suit against the maker of two promissory notes, not subscribed in Louisiana.
    This is the first case in which the acceptance is a Louisiana acceptance. There has never been another case like this before the court.
    There is one case in L. R. 215. Kers et als. v. Erwin, in which the defendant was' the acceptor of a bill; but that bill was payable at Savannah, Georgia. The plaintiffs in that case did not contend that prescription had been suspended, but that it had been interrupted; and their grounds on that point were untenable. Besides, it was proved that since prescription had begun to run, the whole of no one year had passed without an opportunity being afforded the plaintiffs to prosecute a suit against the defendant, in consequence of his being every winter in New Orleans. But the court intimate, that the decision might have been otherwise if the acceptance had been made in Louisiana. They say, “ the decision of the present case does not require from the court any opinion as to what would be the effect produced on the situation of the debtor who has contracted a debt in this State to one of its citizens, and immediately removes out of its jurisdictional limits, and remains five years where the legal process of the State could not reach him, in relation to his discharge from the defendant under a plea of prescription.” That is exactly the case which this court has now to decide.
    In regard to renunciation, the only question is, whether the debt has been acknowledged within the five years preceding the institution of this suit On that subject there can be no doubt.
    Pothier’s Oblig. No. 700, says : “ La préscription quoique ac.complie se couvre lorsque le débiteur a reconnu la dette, bien que ce soit depuis l’accomplissement de la prescription. Cette reconnaissance l’exclus de pouvoir opposer an créancier la fin de non récevoir qui resultait de l’accomplissement du temps de la préscription et par conséquent la couvre et l’anéantit.”
    Article 3424 L. C. says : “ Such renunciation of prescription is either express or tacit. A tacit renunciation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.” This article is a literal transcript of article 2221 of the French Code. All the French commentators say, unanimously, that the acknowledgment of a debt operates as a tacit renunciation, and the reason they give is that the subsequent acknowledgment rebuts the presumption raised by prescription, to wit, that the debt has been paid. Durunton, vol. 21, No. 120, says : “ Quant á la rénonciation tacite elle peut résulter d’une foule de faits suivant les circonstances, nous allons parcourir quelquescas; ainsi le débiteur qui depuis la préscription acquise demande un tenue á son créancier pour la paiement de la dette, soit judiciairement, soit extra-judiciairement, par exemple, par une lettre, renonce par cela méme au droit qu’i) avait de lui opposer la préscription. II en est de méme lorsque depuis la méme époque il recommit simplement la dette.”
    Troplong, No. 65: “Non seulement le débiteur renonce illa préscription lorsqu’il paie, mais encore lorsque par un acte quelconque il recommit l’existence de la créance.” There is no dissenting voice on that subject among the French authors, before and after the code.
    The defendant, in his brief, says, that the letters do not contain a promise to pay. They do not contain it; if they did, the renunciation would no longer be a tacit one ; it would then be express. Nor is a promise necessary. When the debtor acknowledges the debt, the law itself raises the promise to pay. On that subject, Troplong, Pres. No. 15, says: “La rénonciation du débiteur ne constitue pas en general un titre nouveau; c’est l’obligation primitive qui reprend vigueur, et se presente purgée d’une exception qui pouvait la paralyser ; c’est une continuation de ce qui existait auparavant dans les termes du droit.” Dalloz Jurisp. du Royamme, vol. 2, p. 239, is to the same effect. If the doctrine that a new promise is necessary was admitted, article 3424 would thereby be virtually stricken from our code, and then only express acknowledgments could avail creditors.
    The defendant, in his brief, says : “ To establish a renunciation the proof must be unequivocal and irrefragable,” and cites Troplong, No. 56. The doctrine there laid down is fully admitted. That eminent jurist says: “ Tout ce qui portera avec loi la conséquenee nécessaire que la préscription a été abandonnée, sera une preuve suffisante qu’il y a eu renonciation tacite. La loi n’a pas tracé au juge de procédés artificiéis pour former sa conviction, elle s’en rapporte á sa prudence, á sa justice, áson bon sens ; eliene donne qu’un conseil, c’est de n’admettre comme rénonciation que ce qui fait supposer nécessairement un abandon du droit acquis; mais c’est en definitive sa conscience et ses lumiéres qui sont ici l’arbitre.” As has already been stated, the acknowledgment of the debt is considered as a tacit renunciation by all the jurists. Defendant calls the attention of the court to a quotation from Curasson, found in a note to Troplong, in the Brussels edition. Who that Curasson is, I don’t know, I never saw his name before.
    The doctrine laid down in 12 Rob. Rep. 254, cited by the defendant, is also fully admitted. In that case, the defendant, in a conversation with the witness, acknowledged that he was largely indebted to the plaintiff, and the court say that “ to interrupt or renounce prescription the acknowledgment must be of a particular specific debt.” In this case the acknowledgment is of a particular specific debt, and is in writing. Defendant also cites Troplong, No. 524. This is probably- a misquotation. What the- author there says can have nothing to do with this case. He comments on article 2240 of the French Code, the same as article 3480 of our code, which says, that “ one cannot prescribe against his own title, in this sense, that he cannot change by his own act the nature and the origin of his possession.”
    Defendant, in his brief, says: “ Prescription once accomplished, extinguishes the debt as effectually as payment or novation and he contends “ that prescription does not only take away the remedy, but extinguishes the right and he cites articles 2126 and 3494, La. Code, and Troplong, Nos. 29 and 30. Those articles of our code, when construed in connection with each other, do not support the doctrine contended for, and in 2 La. Rep. 389, Nichols v. Hanse and Hepp, it was held, that if a claim by prescription, it still may be offered in compensation. Troplong, loco citato, contends, indeed, that prescription extinguishes as well the natural as the civil obligation. But, of all the commentators on the code, he stands albne of that opinion. However, whether he be right or wrong, as regards the French law, is of little importance to us ; his solitary opinion cannot do away with a positive article of our code on the subject-. Article 1751 says : “ When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.”
    That, if the appellee ever acquired prescription, he renounced it by acknowledging the debt within five years preceding the institution of this suit. See letter of appellant of the 4th of May, 1844, and letter of the appellee of the 16'th of May, 1844, in answer to that of the appellant. Also, letter of the appellee of the 9th of January, 1845, deed of trust, and the confessed interrogatories. The above mentioned letters and interrogatories are printed in the appellants original brief.
    As to the renunciation of prescription, the attention of the court is called to the following authorities : C. C. 3423 : “ One cannot renounce a prescription not yet acquired.” See also C. C. 3424. Troplong, Pres. 1, No. 65 : “ Non seulement le débiteur renonce á la préscription l’orsqu’il paié, mais encore l’orsque par un acte quelconque il reconnait 1’existence de la créance.” Pothier’s Oblig., No 700 : “ La préscription, quoique accomplie, se couvre l’orsque le débiteur a reconnu la dette, bien que ce soit depuis l’accomplissement de la prescription. Cette reconnaissance l’excifit de pouvoir opposer au créancier la fin de non récevoir qui résultait de l’accomplissement du temps de la prescription, et par conséquenl la couvre et l’anéantit.
    In conclusion, the appellant hopes to have shown, that prescription was never acquired by the appellee, because the appellant never had five years during which he had a right to act, and could act; and, that if prescription should have been acquired by the appellee, he renounced it by his letters of the 16th of May, 1844, and 9th of January, 1845, and that the present action having been brought within the five years since the acknowledgment, it has been brought in time.
    
      Prentiss and Finney, for defendant,
    contended : The defendant is sued as the acceptor of a bill of exchange which fell due on the 3d of July, 1838. He relies upon the plea of prescription of five years, based upon the articles 3505 and 3506 of the Louisiana Code. It is evident the prescription was accomplished on the 3d of July, 1843, unless something had occurred previous to that date to suspend or interrupt its course. And, if at that date the prescription was accomplished, the defendant cannot be held liable for the debt, unless he has subsequently renounced the benefit of the prescription. So that the cause presents two questions for your consideration, viz : 1. Was there any suspension or interruption of the prescription prior to the 3d of July, 1843? 2. Has there been any renunciation since? It will not be pretended that there was any interruption of prescription prior to July 3, 1843.
    The counsel for the plaintiff has made an elaborate argument to show that the course of the prescription was suspended for several years by the non-residence of the defendant. Your honors have repeatedly decided that the prescription applicable to bills of exchange and promissory notes, &c., as established by articles 3505 and 3506, does run in favor of the absent debtor, and that no suspension of its course takes place by reason of the absence of the debtor. Match v. Gilmore, 3d Ann. 508 ; Duncan v. Ford, decided same day, but not reported; McMaster v. Mather, 4th Ann. 418.
    There is nothing in this case to distinguish it from those cases. It is admitted that the defendant, at the time of the creation of the debt, resided out of this State, at a place called Tehula, in the State of Mississippi, and that he continued to reside there until sometime in 1844, when he removed to this city, and made it his residence for about eighteen months. 2d. Has there been a renunciation of the benefit of the prescription since its completion ? The plaintiff relies upon two letters, copies of which he has furnished in his brief, as establishing a renunciation of prescription. The letter of the 16th of May, 1844, is principally relied on. Wo beg leave to observe of that letter, that it contains no promise of payment, nor indication of an intention to pay, nor even an acknowledgment of the debt, except so far as it may be inferred from the excuse given for not paying.
    The writer first states his poverty, andr making that his apology, proceeds to tell his creditor to dismiss all hopes of payment. “ It is of no use,” he says, “ to hold out expectations when there is no chance of their being realised.” It is true, he expresses his regrets; but no well-bred man could do less. The whole letter is but an exceedingly polite refusal to make any provision whatever for the debt, or to commit the writer to any efforts to make such provision at any future period.
    Does that letter amount to a renunciation of the prescription ? Such a ' renunciation must be either express or tacit. “ A tacit renunciation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.” La. Code, 3424. If there be any renunciation in this case, it must be a tacit one. It is at best but a weak inference from the acknowledgment, which is itself but an inference from the defendant’s apology for not paying — a very questionable inference from an equally questionable inference. Such a series of inferences, one resting upon another, are not admissible to charge a man with a debt which has been absolutely extinguished. Prescription, once accomplished, extinguishes the debt as effectually as payment or novation. Vide La. Code, 2126, 3494. Troplong on Prescription, Nos. 29 and 30.
    The letter, we think, would suffice to interrupt the course of prescription not yet acquired, but does not support an inference of renunciation. Much weaker evidence establishes interruption of prescription than is requisite to establish a renunciation. A man may be easily supposed to recognise the existence of a debt while it in fact does exist. But we must be cautious in concluding that he intends to revive and re-fasten on himself a debt from which he has been entirely released. To establish a renunciation, the proof must be unequivocal and irrefragable. Troplong, Nos. 56, and note 7, Brussels edition. 13 R. R. 251. Troplong, No. 524.
    We beg leave to call the particular attention of your honors to the quotation from Curasson, in the above cited note to Troplong. It lays down the doctrine distinctly, that a simple recognition of the debt suffices for interruption of prescription; but that it is different with regard to renunciation; that it is necessary that the fact from which we infer the tacit abandonment of prescription should be positive, and not susceptible of explanation in any other manner. Now, what does the author mean when he says that the fact should not be susceptible of explanation in any other manner 1 We understand him to mean, that in order to justify the inference of renunciation, the fact from which the inference is drawn should be such as to infer necessarily an intention to renounce the prescription. Now, the fact from which the inference of renunciation is attempted to be drawn in this case is susceptible of explanation on a wholly different hypothesis. The writer of that letter never dreamed of renouncing prescription. All he meant was to refuse payment, and to give the best excuse fox-doing so in his power. Again, renunciation of prescription is an act of alienation, and must be made with a full knowledge of the cii-cumstances. It must proceed from a will well advised. It must be deliberate. Troplong, No. 55. No man can be deemed to have alienated his rights, unless the act which is relied upon as the proof of the alienation indicates an intention of alienation. To alienate neeessax-ily supposes an intention to do so. And in order to ascertain the alienation the intention must be ascertained.
    As renunciation is, in the language of Troplong, “ une véritable aliénation,” we may well apply to it the same reasoning; and we hold, that no renunciation can be ascertained, unless the act from which the x-enunciation is inferi-ed indicates an intention to renounce. Now, is therein this letter any indication of that deliberate, well advised intention to renounce, which Troplong seems to consider necessary to operate a renunciation ? The most that can be said on the other side of the bearing of the letter on this question of the intention, is simply that the letter uses language which implies the existence of. a debt; but, in common parlance, a debt barred by prescription, or discharged by bankruptcy, is still spoken of as a debt; and a debtor may well mention either in terms strictly applicable only to an existing’legal obligation, without being supposed to renounce the release operated in his favor by the accomplishment of the px-escription or the discharge in bankruptcy. In ox-der to ascertain the intention, we must look at the context and general scope of the whole writing. The whole burthen and object of this lettei-, patent upon its face, was merely to answer a dun with as good a grace as possible, without committing the writer to any efforts to provide for the debt either then or afterwards. We have found a decision by the Court of Cassation, in a case precisely like the one at bai-, fully sustaining our position. Vide 26 Journal du Palais, Bracket v. Mazile, decided March 10, 1834.
    We are unable to furnish your honors adjudicated cases on this point. The common law books can afford us little assistance, for the common law statutes of limitation are wholly unlike our law of prescription, in effect and opex-ation. The fox-mer only bar the remedy and leave the right intact. 5 Buxtow’s Rep. 2630 ; and Tillinghasts’s Ballantine on Stat, Liixx. 17, note, 188, note 1. But prescription goes deepex-, it not only takes away the rexxxedy, but extinguishes the right. La. Code, 2126, 3494. Troplong, Nos. 29 and 30. Cases, therefore, of actions barred by the common law statutes of limitation and by the prescription of our law are not analogous. If your honox-s fee'l 'inclined to examine how far an acknowledgment will revive a debt already barred by the’ statute of limitations at common law, we can refer you to 1 Pet. 309 ; Angelí on Limitations, edition of J846,, 223, et seq.
    
    We repeat, however, that those cases cannot be deemed analogous to the one now at bar; and if they are, even if they be authoritative precedents binding upon your honors, we do not believe their spirit and fair application would condemn the defendant in this case. But we will not trouble your honors with ax-gument on this point. The only analogous cases furnished by the common law reports, that we can call to mind, are those which involve the liability of a party discharged in bankruptcy, resting upon an alleged renewal after the discharge, to pay a debt provable under the commission. The cases of a cex-tificated bankrupt and of a debtor discharged by prescription under our law, appear to us precisely analogous. In both cases there remains an obligation in conscience, although the legal obligation is extinguished. It is well settled, that to bind a certificated bankrupt for a debt px-ovable under the commission there must be a new and positive promise to pay. A mere acknowledgment is not sufficient. 5 Espinasse, 198; 1 Stark 370.
    
      After these decisions, in the time of George IV, a statute was passed, declar*n§ no cert^cntec' bankrupt should be liable to pay any debt from which j]e sjlou],] have been discharged by his certificate, upon any contract, promise, &c., unless in writing. See extract from the statutes in 1 Harrison's Digest, 1098. The doctrine of the English courts before this statute has been maintained in the United States. 9 Ala. Rep. N. S. 320.
    We need not apply the analogy of those cases to the one before your honors. The judge below sustained the prescription, and we beg leave to refer your honors to his opinion. We pray an affirmance of the judgment-
   The judgment of the court (Rost, J. being absent,) was pronounced by

Eustis, C. J.

The defendant is sued as the acceptor of a bill of exchange which fell due on the 3d of July, 1838. It is dated Tchula, Mississippi, February 15th, 1838, and is drawn on Thomas Mather, New Orleans, and is accepted by him, payable at the Commercial Bank, New Orleans. The judgment of the district court was in favor of the defendant on the plea of prescription, more than five years having elapsed since the maturity of the bill. The plaintiff has appealed.

It is contended, that the prespriptipn, if ever acquired by the debtor has been renounced by his subsequent acknowledgment of the debt; and two letters and a deed of trust executed by another party have been referred to as proving the acknowledgment. We think the letters speak of this debt as any conscientious man would be at liberty to speak of a debt, from which he had been discharged by lapse of time, without reviving the obligation. Of this we find no intention on the part of the writer in either of the letters. We find no fact affording the presumption of the relinqpishmpnt of the right acquired by prescription, still less any express declaration to that effect. Code, 3424. Troplong on Prescription, § 156, and cases there cited.

The defendant’s acceptance bears the date of New Orleans, and it is admitted that he resided out of the State from the time the bill fell due to some time in 1844; and that from some time in 1844 the defendant resided in New Orleans for eighteen months, and that after that he went to Mexico, and has not resided in Louisiana since.

The indefinitiveness of the admissions on the record, as to the place of residence of the defendant, renders the application of the law of prescription in reference to it exclusively almost impossible. But it does not appear that the defendant abandoned his place of residence for the purpose of avoiding the pursuit of his creditors, which, if proved, would have avoided the effect of prescription in his favor. It does not appear that the residence of the defendant was in the State of Louisiana at the time of the acceptance of the bill; nor is there any evidence of the acceptance having been made in New Orleans, except its being dated there, which raises a presumption to that effect. Under the decisions of this court in the cases of Boyle v. Mann, 4th Ann. 170, and McMaster v. Mather, Ibid 418, we consider the debt sued for as prescribed by the lapse of five years.

The judgment of the district court is therefore affirmed, with costs.  