LOPEZ ET ALS. vs. BERGEL, 7 La. 178

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. fer^®n judgment by deagainst him^iUs tliatp^yU™isl0j¡l lenee he acjusti'c^'oT tile ^and*^' de" Where the defendant does not deny the plaintiffs5 debt, but lets judgment go by default, this fact will be considered as a corroborating circumstance, which taken with the testimony of one witness is sufficient proof of the demand to make such final.

The omission of the defendant to deny the plaintiffs5 capacity to sue, waives the right to do so, and dispenses him fromtne nec?ssity. °f Pr°ving it, even when the deTb^Vame^coiil si“^d there is a legal presumption of its justice being confessed. He now claims the reversal of the judgment, on the ground that the debt was proved by one witness onty, without any 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.

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 note became due, prescription cannot be opposed as a bar to a recovery, because there is evidence of repeated acknowledgments and proniises to pay.

These promises to pay, it is urged, are sufficiently proved by the testimony of one witness, because the possession of the note by the plaintiffs is a corroborating circumstance, as it raises a strong presumption of its being unpaid. The Code of Practice,

article 360, provides, that when the defendant suffers judgment by default to be taken against him, it is a presumption of his having, by his silence, acknowledged the justice of the plaintiffs demand. It is true, that in the same article, the legislator interprets this silence as evidence of the defendant having joined issue with the plaintiff, i. e. denied his allegations. This discrepancy does not, however, prevent the declaration, that by suffering judgment to be taken by default, from raising the presumption of an acknowledgment of the demand. This declaration, the legislature had the power to make.

They have made it. It is not the duty or business of this court, to deprive it of its effect, and to avoid considering what the legislature has pronounced to be a . . .. ° r presumption of the acknowledgment of the justice of a demand, as a legal corroborating circumstance, which strengthens the proof of it by one witness; especially when we reflect, that under the former Code, the mere suffering judgment to be taken by default, was, in a case like the present, complete proof of the debt.

The defendant’s acknowledgment and promise to pay his note before and after the lapse of five years from the time it became due, and before suit is brought, will take the case out of prescription, when the action would otherwise be barred. If the omission of the defendant to deny the plaintiff’s capacity to sue, waives the right to do so, and dispenses him from the necessity of proving it when the debt is denied ; the same consequence ought to follow, when there is a legal presumption of its justice being confessed. The possession of the note by the plaintiffs, afford some presumption that it is still unpaid.

The forbearance to sue, may well be imputed to the repeated promises of the defendant, and is a corroborating circumstance of the evidence on record, that the promises were made. The cause may well be presumed from the effect. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.