WESTERN DIST. 6. The claim was barred by the prescription of five years, August, 1834. which is now pleaded.

LOPEZ ET ALS. vs.

BERGEL.

7. The acknowledgment, and promise to pay, not being proved, as shown in the preceding points, there is no evidence to repel the plea of prescription.

R. & A. N. Ogden, for the appellees.

1. The plea of prescription cannot prevail. It was not pleaded regularly and at the proper time, and the court cannot now consider it. La. Code, 3486, 3516.

2. The plaintiffs were not bound, to prove the capacity in which they sued, as it was not denied. The rule is well established, that where a party sues in a representative capacity, he is not required to prove that he possesses that capacity, unless it is specially denied.

3. The law declares, that a judgment by default, is a tacit joinder of issue and a tacit confession by the defendant, of the justice of the plaintiff's demand; the reason is therefore much stronger, in not requiring proof of the representative capacity of the plaintiff, in this case, than when there is a general denial. Code of Practice, 360.

4. The objection, that the execution of the note was not proved, in pursuance of the article 325, of the Code of Practice, has no force. That article relates to a case, when the defendant has denied his signature.

5. There is no law, requiring the acknowledgment of the maker of the note to pay it, to be made in writing, or proved by the testimony of two witnesses, or of one with corroborating circumstances.

6. In this case the acknowledgment by the defendant, that he executed, and would pay the note, was made before the prescription was complete, and is different from that made after the debt had been extinguished by prescription, in which case it would only be evidence of a new contract.

Martin, J., delivered the opinion of the court.

The defendant who is sued on a promissory note, suffered judgment by default to be taken, and on its being made final he appealed.

LOPEZ ET ALS.

He now claims the reversal of the judgment, on the ground WESTERN Dist. that the debt was proved by one witness only, without any August, 1854. corroborating circumstances; that the plaintiffs, who sue as the representatives of the original obligee and payee of the note, have not proved their representative capacity; and finally, he relies on the plea of prescription filed in this

court.

BERGEL

When the defendant suffers

judgment by de

fault to be taken

The pretensions of the defendant are resisted on the ground, that he had not denied the debt, and that this fact was a corroborating circumstance of sufficient weight, to authorise the judgment by default to be made final on the testimony of a single witness. That the capacity of the plaintiffs had no need to be proven, as it was not sufficiently denied; and that, although the suit was brought more than five years after the against him, it is note became due, prescription cannot be opposed as a bar to a a presumption, that by his sirecovery, because there is evidence of repeated acknowledg- lence knowledges the ments and promises to pay. These promises to pay, it is justice of the urged, are sufficiently proved by the testimony of one witness, plaintiffs' because the possession of the note by the plaintiffs is a cor- Where the deroborating circumstance, as it raises a strong presumption of its being unpaid.

mand.

ac

de

fendant does not

deny the plain

tiffs' debt, but lets judgment go

circumstance,

sufficient proof

The Code of Practice, article 360, provides, that when the by default, this fact will be defendant suffers judgment by default to be taken against him, considered it is a presumption of his having, by his silence, acknowledged a corroborating the justice of the plaintiffs demand. It is true, that in the which taken with the testimony of same article, the legislator interprets this silence as evidence one witness is of the defendant having joined issue with the plaintiff, i. e. of the demand denied his allegations. This discrepancy does not, however, to make such judgment final. prevent the declaration, that by suffering judgment to be The omission of the defendant taken by default, from raising the presumption of an acknow- to deny the plainledgment of the demand. This declaration, the legislature tiffs' capacity to had the power to make. They have made it. It is not the right to do so, duty or business of this court, to deprive it of its effect, and to him from the neavoid considering what the legislature has pronounced to be a cessity of proving it, even presumption of the acknowledgment of the justice of a when the dedemand, as a legal corroborating circumstance, which The same constrengthens the proof of it by one witness; especially when sequence should we reflect, that under the former Code, the mere suffering there is a legal

sue, waives the dispenses

and

mand is denied.

follow when

WESTERN DIST. judgment to be taken by default, was, in a case like the August, 1834. present, complete proof of the debt.

SPOTTS

If the omission of the defendant to deny the plaintiff's capaLANGE ET ALS. city to sue, waives the right to do so, and dispenses him from the presumption of necessity of proving it when the debt is denied; the same conits justice being confessed. sequence ought to follow, when there is a legal presumption The defen- of its justice being confessed.

dant's acknow

and after the

ledgment and The possession of the note by the plaintiffs, afford some promise to pay his note before presumption that it is still unpaid. The forbearance to sue, lapse of five may well be imputed to the repeated promises of the defendyears from the ant, and is a corroborating circumstance of the evidence on due, and before record, that the promises were made. The cause may well suit is brought, be presumed from the effect.

time it became

will take the

case out of pre-
scription, when
the action would
otherwise
barred.

It is, therefore, ordered, adjudged and decreed, that the be judgment of the District Court be affirmed, with costs.

SPOTTS vs. LANGE AND LONGUEPE.

APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE
OF THE SECOND PRESIDING.

Where two purchasers join in the purchase of a boat, its load and cargo, and one acts as the agent of the other; when sued jointly for the price, the one who authorised the other to act as his agent, cannot call his co-defendant in warranty.

Purchasers of property, from a person having the apparent right of disposing of it, are not to be considered as trespassers.

An amendment, correcting an error in the petition, by describing certain timbers in a house-frame, to be poplar instead of walnut, as originally stated, does not require an answer.

The plaintiff alleges, that in the month of October, 1832, he entrusted one Samuel Barber, in Henderson county, in the state of Kentucky, with the captaincy and agency of a flat

SPOTTS vs.

boat and her load, consisting of plank, scantling and house- WESTERN DIST. frames, to bring to New-Orleans; that in December, when the August, 1834. boat and load arrived at Baton Rouge, Hilaire Longuepe and Charles Lange, fraudulently and without any right or title, LANGE ET ALS. took possession of her, and converted to their own use, the said boat and her loading, worth the sum of one thousand four hundred dollars, for which he prays judgment, or the restoration of the boat and cargo, and for six hundred dollars in damages and costs.

The defendants separated in their answers. Lange pleaded the general issue; specially denying all fraud, or that he is bound either personally or in solido, with said Longuepe, for the restitution of said boat, lumber, and house-frame, or the payment of any sum of money therefor. He further states, he purchased from Hilaire Longuepe, one-half of said boat and lumber, and part of a house-frame, different from that described in the petition, for which he paid six hundred dollars; that Longuepe showed him a receipt, by which it appeared, he had paid eight hundred dollars for the boat and its cargo, from which he appeared to be the rightful owner. He prays judgment in warranty, against Longuepe, for the same amount that may be obtained against him, in case it is made to appear, that the said boat and its contents, were the property of the plaintiff, &c.; and for three hundred dollars in damages. The plaintiff had leave to amend his petition, by alleging, that the house-sills stated therein to be of walnut, were in fact made of poplar.

Longuepe pleaded a general denial; and that he purchased the boat and lumber, as the agent of Charles Lange, his co-defendant, from a person, purporting to be the commander of the boat, whom he believed to be the bona fide owner; but that he never took possession of any part of the property, which was taken by his co-defendant. He prays for a separate trial.

Certain interrogatories were propounded by the plaintiff, in a supplemental petition, to be answered by the defendants in open court, at a time to be fixed. Longuepe, one of the defendants, moved to have them struck out, on the ground,

WESTERN DIST. that he had severed from his co-defendant in his trial; that August, 1834. his defence is adverse to that of his co-defendant, &c. The motion was overruled, and a bill of exceptions taken.

SPOTTS v8.

LANGE ET A LS.

Lange answered the interrogatories, and declared that he bought the half of the flat-boat and lumber, &c., from Longuepe, his co-defendant, who showed a receipt, by which it appeared he gave eight hundred dollars, for the boat and her loading. After taking out part of the contents of the boat, he gave Longuepe six hundred dollars for the balance. He denied that Longuepe acted as his agent.

Longuepe, in answer to the interrogatories, stated that he purchased the boat and contents, as the agent of Lange, for two hundred dollars. That the person from whom he bought, after stating his reasons, and on giving a bill of sale, stated in it, that the price was eight hundred dollars, &c.

Mr. Jones, a witness for plaintiff, states that he assisted in procuring the lumber and house-frame in question, and that he has since seen the same house-frame, and about fourteen or fifteen thousand feet of the boards and scantling, in the lumber-yard of Lange; as a carpenter, the witness estimates the house-frame, and what plank, scantling and materials he has seen in possession of the defendant, as worth seven or eight hundred dollars, not including the fourteen or fifteen thousand feet of lumber, &c., which is worth about three hundred dollars.

The cause, on this evidence, with that of several witnesses, substantially corroborating it, was submitted to a jury, who returned a verdict of one thousand one hundred dollars for the plaintiff, against Lange, and in favor of Longuepe, upon which judgment was rendered. The defendant's counsel moved for a new trial, on several grounds, which was overruled, and Lange appealed.

R. & A. N. Ogden, for the plaintiff.

1. The verdict, and judgment thereon, is fully supported by the law, and the evidence of the case. Whether Lange knew at the time or not, that he was purchasing the property