
    Richard Murphy v. Thomas Guiterez.
    In a redhibitory action the prescription of one year does not apply, except from the date of the discovery of the vice; and then notin the case of an absentee against whom no process could issue within that period. “ Contra non valentem agoré non currit tprescriptis.”
    
    XX PPEAL from the Sixth District Court of New Orleans, Leaumoni, J.
    
      G. Dufour for plaintiff. Geo. L. Bright, Curator ad hoe, for defendant and appellant.
   IdsiiEY, J.

This is a redhibitory action to rescind the sale of a slave and to recover the price, with damages.

It is alleged and shown, that the sale, with full legal warranty against all the maladies and defects prescribed by law, took place on the 20th February, 1860.

It is also proved that, immediately after the sale of the slave, the vendor broke up Ms domicil in this State and departed for Spain, his native country, whence he has never since returned.

The sale was a fraudulent one.

The action was originally instituted on 23d June, 1863; but as the defendant, one Avendano, against whom proceedings were commenced, as soon as it was ascertained that he was the agent of the defendant, excepted, on the ground that he was not authorized to appear in court, an attachment against the defendant’s property, then but recently discovered, was sued out.

The boy was diseased at the time of the sale, to the knowledge of the defendant, who fraudently concealed the fact from his vendee, and the slave died of the same disease, in the year 1863.

The prescription of one year is relied on to defeat the plaintiff’s claim. See Art. 2512 L. C.

This prescription is not applicable to the present case, as it falls within the exception in section 1 of that Article, which says:

“ This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.”

In such a case, “ the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice. ” Art. 2524. •

But more than a year had elapsed between the discovery of the vice and the service of the petition.

If the defendant had continued to reside in the State, during the whole year after the discovery of the vice, the plaintiff’s action would have been barred; but he broke Tip his establishment and quit the State permanently, before the expiration of the delay, leaving in it neither domicil, nor known agent or property, so that the process could reach him within a year; nor, indeed, until the plaintiff ascertained that he had left an agent and property in the State, when proceedings against both were immediately commenced and process served. Till the plaintiff’s action was instituted, it was inrpossible for him to act.

He invokes the equitable rule, “ contra non, vcdentem ayerenon curritpre-soriptis,” and it must prevail.

See the cases of Morgan v. Robinson, 12 Mar. 76 (old series); Landry v. L’Eglise, 3 La. 221; Guilliet v. Erwin, 7 La. 581; Smith v. Taylor, 10 Rob. 133; Martin v. Jennings, 10 A. 553; Boyle v. Mann, 4 A. 170; Reynolds v. Batson, Same v. Brenford, 9 A. 729.

It is therefore ordered, adjudged and decreed, that the judgment of the District court be affirmed, with costs in this court, to be paid by the defendant and appellant.  