
    Hatch v. Gilmore.
    In ¡tfie absenc.e of evidence to the contrary, an endorsement will be presumed to have been made pt the place where the note was executed.
    An action against the endorsers of a promissory pote /nade and endorsed in another State, is prescribed by five year? from the .date of the note, under arts. 3505, 3506 of tlie Civil Code, though the endorser resided for a part of the time in the State where the note was made. The rale Contra non valentem, fyc. is inapplicable to such a case.
    
      Appeal from the Fourth District Court of New Orleans, Strawbridge, J.
    
      Mount, for the appellant.
    Art. 3506 of the Civil Code declares that the prescription established by art. 3505 shall run against minors, &c.; it does not provide that if shall run in their favor. The prescription of fiye years does not run in favor of an absentee. See Guittetv. Erwin, 7 La. 58.0. 12 Martin, 76. Ker v. Erwin, 4 La. 217. Garland v. Holmes, 1 Ann. 404. Such is the law in other States. In Buggies v. Keeler, 3 Johns. R. 264, C. J. Kent says: “ If the cause of action arise out of the State, it is sufficient to saye the statute from running in ¡the favor of the party to be charged until he corpes yithin our jurisdiction.” So in Halsey v. Beech, } Pen. N. J. Rep. 122. So in Dwight 8f Clark, 7 Mass. 516. Sneed v. Hall, 2. Marsh. Ky. R. 21. So where a debtor at the time the cause of action accrued, was residing out of the State, subsequent temporary visits in the State, without the knowledge of plaintiff, is not sufficient, &c. 2 IT. S. Dig. p. 363, sec. 330, Crosby v. JVya.lt, 10 Shepley, 156. ’Same Dig. sec. 331. 12 New Hamp. 271. Ib. sec. 334. Hillv. Bellows, 15 Verm. 927. 5 How. Miss. R. 258. 3 Pi.ke, Ark. 4.09. 7 Mo. 241. Ib. 473. 8 Mo. 233. 5 How. R. 266. White v. Briley, 3 Mass, R. 273- Wilson v. Appleton-, 17 Mass. R. 1.8}. Hall v. Little, 14 Mass. 203. 11 Wheaton, 331. ,6 Wheat. 541. 2 Stark. Ev. 901, note 2.
    
      Edwards and Hayes, on the same side.
    
      Peirce, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The defendant is sued as the endorser of a promissory note, dated at Vicksburg, Mississippi, May 2, 1835, payable at twenty-four months after date. Thp case turns upon a plea of prescription; and the facts pertinent to the plea are, that, at the ljiafurity of the note, May 5, 1837, the defendant resided in Vicksburg: and that he continued to reside there until the 4th October, 1842, at which date he came, for the first time, to Louisiana, where he has since lived. In the absence of evidence to the contrary, it is to be presumed that the defendant endorsed the note in Mississippi. The citation was served on the 22d December, 1846.

In avoidance of the plea of prescription the plaintiff relies upon the maxim, “ Contra non valentem agere, nulla currit prescripts,” The applicability of this rule, under the circumstances of this Gase, is the only point which requires our attention. This maxim, which has been lauded by some jurists, has been found fault with by others as opening a door to abuse, by reason of its vagueness and generality. It is not our purpose, on the present occasion, to attempt to lay down any rules for its application, except so far as i.s indispensable fqr fhe case before us. To do so would be a task not free from difficulty, and it is better to leave various cases as they arise to be considered upon their proper merits.

Express legislation has provided various terms of prescription adapted to the various transactions and interests of individuals, and has, in many cases, expressly declared exceptions to the application of the general limitations of acr tion so established- The exception contained in the maxim under consideration, so far at least as the class of contracts now in question is concerned, rests not upon the Code, but upon jurisprudence. From these considerations it seems to us a j.ust conclusion, that, if the exception Contra non valentem is to be applied to cases where the Code has declared no exception, it should be done with caution, and only where .the manifest spirit and intention of the express jaws is not violated.

Now it is declared, in general and unqualified terms, by article 3505, that: Actions onbills of exchange, notes payable to order or bearer, except bank #otes, those on all effects negotiable or transferable by endorsement or deliver ry, are prescribed by five years, reckoning .from the day when these engagements were, payable.” Then follows an article indicating the policy of the lawgiver, and his intention that the rule should be stringently enforced: “ The prescription mentioned in the preceding article, and those described in paragraphs 1 and 2, runs against minors and interdicted persons, reserving to them their recourse against .their tutors or curators. They run also against persons residing out.of the State.” Here the law expressly forbids an exception to be made even in favor of minors, .the class, of all persons, which the law is most disposed to favor and protect. Fragile et inf/rmum ejusmodi cetatum.consilium. They are presumed not to understand their rights, and not to be capable of taking notice of the.r.ules of law, so as to be able to apply them to their advantage. Hence it is that the Code abounds with exceptions in favor of minors; and when we find them expressly bound, in this particular case, by the prescription of five years, it seems to ,us we should be .doing violence to ,the spirit of the written law, to let in an exception resting merelj in jurisprudence. See also Tyson v. McGill, 5 La. 146.

In the views we .have expressed we ¡have taken it for granted, for the purpose of argument, that the maxim, Contra non valentem, 8{c. would apply to the case before us, were the contract not of the class comprehended by articles 3505 and 3506. \V,& do not wish, however, to be considered as expressing an .opinion upo.n that point, as it isno.t necessary now to do so.

Judgment affirmed.  