Franklin v. Verbois

6 La. 727 | La. | 1834

Bullard. J.,

delivered the opinion of the court.

The counsel for the appellant claims the reversal of the . judgment rendered in the District Court, on two grounds.

1. That the judge U quo erred in thinking that the endorsers of the note sued on were absolved from liability on account of the irregularity in the protest made by the notary.

gení'in’laiiy^for ™te11amfto°La wtthorSoMn demandt0of“ayment, will excuse the want of a formal demand. Tim act of not introduced toy«'eW demand necessary to bo made on makers of notes or ac~ drawer! of bin” Sutl 'a" legal m<Xfo°aspato bind endorsers must depend on law.

2. That he erred in refusing to give the payee of the note interest from the day said protest was made.

The promissory note sued on is dated at New-Orleans, and no particular place of payment is given; according to the usage of the place it was deposited for collection in the Bank of Louisiana; and on the last day of grace the notary who made the protest certifies that diligent enquiry was made at several places of public resort in this city and elsewhere, for the drawer of the note, in order to demand payment, but he could not be found, nor any person who could tell where he was to be found; whereupon the note was protested for non-payment, and on the following day written notice of protest was left at the houses of the two endorsers. A clerk of the notary testified on the trial that he inquired at the Bank and of several persons at the coffee house, that he knows the defendant, Yerbois, but not where his domicil is; he could not recollect of what persons he made the inquiry. A witness for the defendant certifies that he knows Yerbois; that in April 1833, he lived with his mother in Casa Calvo street, where he now lives.

There is no evidence to show that the holder of the note or the notary knew the domicil of the maker; and we are of opinion that making diligent inquiry for the maker and for his domicil without effect, excuses the want of a formal -, , ^Tr . . , , demand. W e concur m opinion with the district iudee orw , x ^ ^ 5 1‘hat the act or 1827 has not introduced any new rule as to the demand of* the makers oí* promissory notes or acceptors or drawees of bills of Exchange. What will constitute a legal demand oí payment so as to bind endorsers must dePend on the commercial law, independently of the act of 1827. -Chitty on Bill, 337, and in notes.

The plaintiff was entitled to interest on two grounds: r- , -t ,i . . , -, n nrst, because the note was protested for non-payment, and secondly, because it was given for the price of slaves purchased of the plaintiff, and which were mortgaged to secure the payment of the note. 3 N. S. 185.

Interest will be allowed on protested notes, and on those given for the price of slaves purchased from the time when they are due and payable. Notice of protest for non-payment by the drawers given to the endorsers by leaving it at their dwelling housos is sufficient.

Notice of non-payment given to the endorsers by leaving it at their dwelling houses appears to us sufficient.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled, and that the plaintiff recover of the defendants, Nicolas Yerbois, Emelie Bezon, and Gerard de Montagnac in solido, the sum of thirteen hundred and twenty five dollars, with interest at five per cent, from the third of April 1833, and costs in both courts; and it is further ordered that the mortgaged slaves be first seized and sold to satisfy this judgment.