
    DITCH vs. WILKINSON'S CURATOR.
    westers Dist.
    
      September, 1836.
    APPEAL FROM THE COURT OP PROBATES POR TIIE PARISH OP ST. MART.
    An action for services done as a laborer or servant, for wages, must be-brought within a year after the service is rendered. A continuity of services does not prevent prescription from running.
    A verbal acknowledgment of a person, that he intended to give the plaintiff a certain sum, as a compensation for her services,, will not repel the plea of prescription.
    
      -A. declaration made by a party to a third person, that he was under a moral obligation to pay the plaintiff for services rendered, and mentioned a sum that he intended to give her, is not binding, when made out of the presence of the person in whose favor it was made.
    The plaintiff claims the sum of sixteen hundred and eighty dollars, for her services rendered to the deceased, Samuel Wilkinson, as house-keeper and sole manager of his domestic concerns, for nine years and four months, up to the time of his death, at fifteen dollars per month. She alleges she has claimed this sum from the curator of the estate of the deceased, who refuses to allow it, wherefore she prays for judgment.
    The defendant pleaded a general denial; and further averred, that if the plaintiff resided with the deceased, it was as an adulterous concubine, and that her maintenance was more than compensation for her services. He further pleaded the prescription of one year.
    Witnesses were produced by the plaintiff, who testified that she rendered great services to the deceased, in keeping house, making clothes for the negroes, and taking care of the young negroes and his domestic affairs. It appeared the plaintiff had a husband living when she went to live with Wilkinson. They were, never married. Wilkinson was heard to say, shortly before his death, that he considered himself bound to compensate the plaintiff' for her services, which were proved to be worth from ten to twelve dollars per month, exclusive of her maintenance.
    “A witness proved that Wilkinson, a short time before his death, stated to him (witness) that he and the plaintiff were going to separate^ and that he was going to give her one thousand dollars and a likely negro.”
    On the trial the plaintiff’s counsel introduced a witness to prove that Samuel Wilkinson, deceased, during his life time, and a short time before his death, acknowledged that he was indebted to the plaintiff, which was objected to by the defendant’s counsel, on the ground that no oral admission of a debt can bar prescription, and that parole evidence of such admission is illegal and inadmissible. The objection was overruled and the testimony received. The defendant’s counsel took a bill of exception to the decision of the court.
    It was admitted that Wilkinson died the 31st of December, 1834. The petition was filed in this case the 2d July, 1835.
    The plea of prescription was rejected; and the Probate Judge decided that, by reason of the acknowledgment of said Wilkinson, a few days before his death, he was indebted to the plaintiff in the sum of one thousand dollars, judgment should be rendered in favor of her for that sum.
    The defendant appealed.
    
      Lewis, for the plaintiff.
    1. The sum allowed by the judgment is shown to have been acknowledged by the deceased to be due to the plaintiff for her services. This much at least is owing, and the judgment must stand.
    2. Prescription cannot avail. It ceased to run, and was interrupted by the acknowledgment of Wilkinson that he owed the plaintiff. Louisiana Code, articles 3486, 3516, 17 and 18.
    3. A continuity of services prevents the wages during the first year’s services from being barred by prescription. 4 Louisiana Reports, 128-9.
    
      Morse, for the defendant.
    1. A concubine cannot receive, by donation, inter vivos or mortis causa, any immovables, and only of movables not exceeding one tenth part of the estate of the donor. Louisiana Code, article 1468.
    2. This is a claim for services which is barred by the prescription of one year. A continuity of services does not prevent prescription from running. 6 Martin, N. S. 228. 5 Louisiana Reports, 15.
    3. The parole admission of an account does not prevent prescription, on a claim for workmen’s wages, claims of servants. 3 Martin, JV*. 707.
    
    4. Prescription of an account for services rendered by a servant, workman, or laborer, for wages, continues to run, annually, against it, unless there has been an account acknowledged, a note given, or a suit instituted. Louisiana Code, 3499, 3500. 3 Martin, N. 'S., 707. 8 Martin, N. S., 492. 1 Louisiana Reports, 268. 2 Ibid. 382.
    An action for Uaiíom-1™ set--vam, for wages, must lie brought within a year af-rentiered.1Vl0°a continuity of services does not. prevent pro-canning? fl'°m
    A verbal ac-■of^apeillmdiat lie intended to give the plaintiff a certain sum as for'iier'serrices? the\)iea*of'pro-scription.
    5. The authority relied on by the plaintiff’s counsel in 4 Louisiana Reports, 128-9, relates to clerks’ hire or wages. It is governed by the article 3503 of the Louisiana Code, which says nothing about prescription running, though there be a continuity of services. That case is different from this.
   Marlin, J.,

delivered the opinion of the court.

The plaintiff claims a sum of money for her wages as a servant or house-keeper, during the period of upwards of nine years.

The defendant pleaded the general issue; and that the ■plaintiff was the concubine of the deceased Samuel Wilkinson, and as such was not entitled to wages; her services being compensated by her support. Prescription of one year was also pleaded. There was judgment in favor of the plaintiff for one thousand dollars, and the defendant appealed.

The services of the plaintiff in the various branches of house-keeping were proved. The concubinage was not established by the evidence in the case, and if it had been, {[ could not have affected or diminished her claim for .... compensation for the above services.

The plea of prescription certainly attaches to her claim, except for the services rendered the year preceding the death * “ t o of Wilkinson, with whom she lived. The Code requires an action for services of this kind to be brought within a year, and expressly provides that a continuity of the services does not prevent prescription. Louisiana Code, 3499, 3500.

The Court of Probates, however, was of opinion that judgment could be given for the sum of one thousand dollars, on a declaration of the deceased that he was under stl'°ng moral obligations to requite her services and intended to give her that sum. This declaration cannot avail the plaintiff in repelling the plea of prescription, because it was made orally. 3 Martin, N. S., 707.

A declaration, made by a party to a third person, that he was under a moral obligation to pay the plaintiff for services rendered, and mentioned a sum that he intended to give her, is not binding when made out of the presence of the person in whose favor it'was made.

It cannot be considered as a new promise, as it was not made to, or in the presence of the plaintiff. Had it been, it should, perhaps, have been disregarded, as proven by one witness only.

The services of the plaintiff are proved to be worth twelve dollars per month, and she is entitled to recover the amount due to her at this rate, for the last year.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the Court of Probates be annulled, avoided, and reversed: and proceeding to give such judgment as, in our opinion, should have been given in the court below, it is ordered, adjudged, and decreed, that the plaintiff recover from the defendant one hundred and forty-four dollars, to be paid in due course of administration of the succession of the deceased, with costs in the Probate Court, those of the appeal to be paid by the plaintiff and appellee.  