Dubose v. Bosworth , 1 Gunby 39 ( 1885 )

Farmer, J.

The plea of novation admits the former existence of the debt; but it is not a confession of judgment which precludes all evidence of the amount really due. It is rather a violent presumption which relieves plaintiff from the burden of proving his demand; but its effect may be limited by subsequent proof that the whole of the debt sued on never was due. 14 An. 54.

2. Where, after defendant pleads novation, plaintiff does not rely on it to establish his claim, but introduces proof, defendant may rebut it. A party who introduces evidence he might-withhold, having no necessity for it, must abide its efíects. 1 N. S. 243. Notwithstanding the plea of novation, we cannot give judgment for the amount claimed in the petition, when the evidence proves that a smaller sum.is due.

3. A claim of eight per cent, interest on an account running through several years with partial payments, though acknowledged to be correct, will not bind the defendant for that rate of interest, unless the acknowledgment be in writing. C. C. 2924.

4. Where plaintiff received two notes of the husband and gave him a receipt, stating that the notes were received in full .of his wife’s debt,” the notes do not operate a discharge. 14 An. 54. Novation is never presumed ; the intention to novate, to discharge the original debtor and extinguish the original debt, must clearly result from the language used. C. C. 2190, 2192.

5. Attorneys’ fees are prescribed by three years. A renunciation of prescription on a debt not evidenced by writing may be proved by parol. C. C. 2278. Payments on an account interrupt prescription, but do not convert the claim into a ‘‘ stated account.” A plea of novation does not waive the plea of prescription. 7 An. 22; 11 An. 213. A husband, having the administration of his wife’s property, cannot bind her by acknowledging her paraphernal debts, unless he act as the authorized agent of his w'ife. C. C. 2997.

6. A plea of prescription may be filed at any time, and when it is filed, it cannot be held to be waived, unless the party expressly withdraw it. If the judgment of the lower court ignore it, it will be considered that it was overruled, and the Circuit Court will accordingly pass upon the plea.