Ohse v. Fisk ( 1880 )

White, J.

The defendant is sued on a promissory note. He pleaded the prescription of five j'uars. The note was on its face prescribed. On the trial plaintiff offered by parol proof to shew promises or acts interruptive of prescription, which was objected to under C. C. 2278, inhibiting “parol proof of any acknowledgment or promise to pay any debt or liability evidenced by writing, when prescription has already run.” The objection was sustained and the proof excluded. The ruling was erroneous. That the provision relied on to support it, applies to renunciations and not to interruptions of prescription is settled by an unbroken line of authority. Bernstew v. Ricks, 21 A. 179; Silverwage v. Fluker, 21 A. 191; Ross v. Johnstone, 23 A. 109; Peleton v. Boagui, 26 A. 607; Crone v. Citizens Bank, 28 A. 449; Boutt v. Sarpy, 30 A. 496. There is not an adjudicated case holding otherwise, for although counsel refer us to Succession of Hildebrande, 21 A. 361, and, to Barclay v. Johns and Turner, 28 A. 245, they have no application to the case before us, referring as they do to promises made by a deceased person and therefore falling within the second clause of C. C. 2278.

Judgment reversed and case remanded.