JOUETT vs. ERWIN ET AL., 9 La. 231

Bullard, J., delivered the opinion of the court. This action is brought upon an instrument of writing signed by the late Joseph Erwin, the ancestor of the defendants, by which he acknowledges to have received from the plaintiff, two notes signed by Abraham Wright, upon which five hundred dollars were due, for the purpose of securing the amount, if practicable, without suit, and if so secured and by him (Erwin) received, to be paid to said Jouett, or his order, and if not so secured, the notes to be returned when called for. This paper bears date March 6, 1823.

The plaintiff sues for the amount due on the notes, or for a surrender of the notes themselves, in the alternative. An instrument of writing, acknowledging the receipt of certain notes for collection, and the money to be handed over, or the notes returned when called for, does not come within that class of obliga-gations which are prescribed in five years. No prescription runs against it, until some act is done by which a right of action accrues.

A receipt for notes to collect and pay over, or return when called for, is rather evidence of a mandate, than an obligation to pay money, in which the subscriber to the instrument of writing constitutes himself an agent, to secure and receive payment, and pay over the sum collected, &c. The defendants pleaded a general denial, and the prescription of five years. The plea of prescription being sustained by the- District Court, and the suit dismissed, the plaintiff appealed.

Article 3505 of the Louisiana Code,' on which the defendants rely to sustain this prescription, declares, “that actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by endorsement or. delivery, are prescribed by five years, reckoning from the day when these engagements are payable.” Even admitting,' for the sake of argument, that the paper sued on, comes within the class of engagements contemplated by this article, yet the time at which the payment was to be made on the notes surrendered, is left wholly indefinite.

It does not appear that five years have elapsed since a right of action'accrued to the plaintiff, although the paper bears date more than ten years ago. But we consider the instrument in question, rather as evidence of a mandate, than as an obligation for the payment of money. The subscriber constitutes himself the agent of the plaintiff, to secure the payment of certain notes without suit, and he engages to account to his principal on demand; to pay him over the money, if he should receive it, and if not, to return the notes.

We are, therefore, of opinion that the court erred in sustaining the plea of prescription, but the evidence in the record does not enable us to decide upon the merits. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, the case reinstated, and the plea of prescription overruled ; and it is further ordered, that the case be remanded for further proceedings according to law, and that the appellees pay the costs of the appeal,