T. S. Dugan & Co. v. Fulton

Buchanan, J. This is a suit upon an open account, and the defence is prescription. Plaintiffs endeavor to escape the effect of this plea, by arguing that the defendant had put it out of their power to sue him, by removing from the State in which both parties resided, Ohio. But it is proved by two witnesses, that plaintiffs were informed that defendant resided in San Francisco, California. And in corroboration of this fact, the petition states, that in the year 1850, or thereabouts, the defendant left the the State of Ohio for California. Under these circumstances, a case of inability to sue, is not made out, and the plea of prescription must prevail, under the doctrine of Suydam v. Kinney, 9 An. 316. See also 4 An. 418, and 10 An. 553. Judgment affirmed, with costs.