DITCH vs. WILKINSON'S CURATOR, 10 La. 201

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.