Glenn v. Dunbar's Administratrix

Shdeld 0. J. The petition in this case was filed and served in June, 1851. It alleges that the succession of Dunbar is indebted to the plaintiff in the sum of $2000, for which a judgment is prayed; and the ground of action is thus stated: “ That petitioner advanced the said sum of money to said Dunbar, and the said indebtedness was acknowledged by placing the same on his schedule filed in his insolvent proceedings in the late Commercial Court of New Orleans, and by the letter of said Dunba/r, dated 17th December, 1849, and annexed to the petition, by which he promised to pay petitioner said sum of money so due by him, thereby renewing the obligation and conferring on petitioner a right of action for its recovery.” Among other grounds of defence, the defendant relied on prescription. This ground seems to us untenable, for it appears that at the date of the schedule and of Dunbar's letters, Glenn resided in Baltimore ; his residence is so stated in the petition; there is no evidence that he has ever been in this State. The fair inference from the proof before us, is that he has been absent. It will be observed also that the plea of prescription is general, that is to say, without any specification of terms, and the Article 3508 of the Code, which is invoked in argument by the defendant, declares that “in general all personal actions, except those above enumerated, are prescribed by ten years, if the creditor be present, and by twenty years if he be absent.” As, therefore, a final judgment cannot be rendered for defendant upon the plea of prescription, it remains to consider the other grounds of defence. We do not think the letter of 17th December, 1S49, sustains the allegation of the petition, that Dunbar thereby “promised to pay the debt mentioned in the schedule, and thereby renewed the obligation, and conferred on petitioner a right of action for its recovery.” It is by no means clear from the language of the letter written in 1849, that the writer refers to the debt mentioned in the schedule in 1840. But were it conceded that the letter refers to the same debt, it does not contain an absolute promise to pay. If the letter can be considered as anything more than a conscientious acknowledgment of the existence of an obligation and the suggestion and the encouragement of a hope that it would eventually be paid, if a promise be its true import, it was nevertheless nothing more than a conditional promise. The writer describes the struggles he had made to pay his debts, the misfortunes he had encountered in his subsequent business, and the large absorption of his salary by family expenses, and then uses this language : “ I beg that you will bear with me a little longer, and if my health is spared you will yet receive from me everything. I shall have to make to you monthly payments, and by this means secure you the amount. My expenses this winter have been heavy, from the fact of my poor wife being confined with rheumatism to her bed,” &c. [255] By his cessio bonorum, Dunbar was relieved to this extent, that his creditors, parties to the insolvency, could only attack, for the unsatisfied balance of their claims, upon showing that he had acquired property over and above what was necessary for his maintenance and that of his family. Civil Code, 2178, Act of 1817, p. 188 ; Plympton v. Preston, 4 Annual, 359; Quimper v. Biena, 8 Rob. 204; Goicochea v. Ricarte, 4 La. 45. Unquestionably the original obligation is a sufficient consideration for a new promise, and such promise will support an action. Beck v. Howard, 3 Ann. 501. But if the promise bo conditional, the condition must be observed. Here the evidence shows that Dunba/r was in bad health from December, 1849, up to the time of his death, and it is neither alleged nor proved that his affairs so prospered after the letter as to give him the ability to pay. Having failed, therefore, to substantiate a right of recovery by virtue of the alleged new promise in 1849, the plaintiff’s case rests solely upon the acknowledgment made in the schedule. But the evidence which proves that acknowledgment, establishes also that there has been a cessio bonorum; and the grounds for a new attack in such case are neither alleged nor proved. We will not undertake now to decide a question both novel and difficult, whether upon the death of a debtor who has made a cessio bonorum, his subsequently acquired property is answerable for the unpaid balance of debts antecedent to the cession, even though the property thus left at his decease be insufficient for the maintenance of his widow and children. Leaving that question open, it is sufficient now to say, that the plaintiff has not alleged nor proved that the insolvent estate has been settled and its assets have proved inadequate. It is therefore decreed, that the judgment be reversed, and that there be judgment against the plaintiff, as in case of non-suit — the costs in both courts to be paid by the plaintiff.