Boyle v. Mann

The judgment of the court was pronounced by Rost, J.

This action was commenced by attachment, in August; 1847, on a. promissory note, which had been due more than five years at the time. The' plea of prescription, under art. 3505 of the Code, presents the only question in the cause. The plea was maintained in the first instance, and the plaintiff appealed.

In January; 1837, the defendant was' a member of the commercial' firm of W. L. # W. Mann, trading in Franklin, in the State of Mississippi. Flis brother and pftrther subscribed the note-sued on in the name of the firm, on the 6th January of that'year. It was payable six months after date. W. L. Mann was killed' before the maturity of the note; The defendant took charge of his assets, and, in the words of one of the witnesses, “paid as long as he had available means, and finally abandoned all in despair.” In 1840, he removed from *171 Mississippi to Texas, which was then a foreign country, and thence to Mexico, in 1847.

We consider this a proper case for the application of the rule Contra non valentem. All acts or hindrances—voice de fait et empechernens, coming from the debtor, which deprive the creditor of the remedy and forum contemplated at the time of the contract, suspend prescription. 2 Troplong, Prescription, 725. The Commercial -Code of France establishes, for bills of exchange, a prescription similar to that which is here pleaded. It has been held there that this prescription cannot be opposed by the drawer of a bill, who, before the expiration of the five years, obtained it confidentially from the holder, and wrongfully kept it beyond the time at which prescription would have accrued. 2 Troplong, loco citato. And again, after the drawer of a bill of exchange 'has failed, and the bill has been placed by the holder in the hands of the syndic, if the syndic fails or refuses to return it, the prescription of five years is suspended from the day of such failure or refusal. Dalloz, 1845, 1st part, p. 29.

The disappearance of the defendant, and his removal to a foreign countiy, was also an empeckement by which the plaintiff was deprived of his remedy; and that his intention in removing was to defeat the claim of the plaintiff and of his other creditors, is .proved by his declarations to the plaintiff’s agent, that he had left behind him many debts which he never intended to pay, and that if this was one of them he would class it with the others, and never -pay it. In this resolve we cannot assist him.

It is, therefore, ordered that the judgment in this case be r.eyersed, and that there be judgment in fayor of the plaintiff for the sum of $302 75, with interest at the rate of ten per cent per annum from the 9th July, 1837, till paid, and costs in both courts. It is further ordered that the property attached be sold to Batisfy this judgment.