Landry v. Stansbury

10 La. 484 | La. | 1837

Martin, J.,

delivered the opinion of the court.

The defendant, sued as endorser of a promissory note, is appellant from a judgment against her, and seeks to be relieved under an allegation that no demand was made from the drawer or his representative, and that no legal- notice was given to her.

The facts of the case are these : The drawer died, and an administrator was appointed to his estate before the date or period at which the note became payable. On that day the notary went to the domicil, or late residence of the drawer, but found no white person on the premises; and he certified that notice was served on the defendant by a letter directed to her, in the parish of Ascension, and deposited in the post-office at Donaldsonville, on the day following that of the protest.

The reversal of the judgment is claimed on the authority of the case of Toby vs. Maurian, 7 Louisiana Reports, 493; in which we held that “ no recovery can be had of the endorser, until demand of payment has been made on the drawer or maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such a demand be shown.” In that case, there had been no administrator or curator appointed to the estate of the drawer. The demand, therefore, might have been made of bis heir or widow in community. In the present instance, there -was an administrator legally appointed, contrarily with whom alone all claims against the estate were to be settled. In the case of Hale vs. Burr, 12 Massachusetts Reports, 86, the Supreme Court of that state decided, that when the legal representative of an estate is prohibited by law from paying any claim against it until after the expiration of a twelve-month, no demand need be made on him for the payment of any note of the deceased, becoming payable within that time, in order to charge the endorsers. Administrators in this state being under a similar prohibition, it follows, that the demand on them would be nugatory, as they are under no legal or moral obligation to comply therewith. Lex neminem corgit ad vana. This case is very different from that of Toby vs. Maurian, and cannot be distinguished from that of the case of Hale vs. Burr, decided by the Supreme Court of Massachusetts referred to.

No recovery can be had of the endorser, if demand of payment he not made on the maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such demand is shown. ■Where the maker of the note is dead on the day it is due and payable, and an administrator is appointed, it is unnecessary to make a demand on him, in order to bind the endorser, because he is not authorized to pay any claim against the estate until the expiration of a certain period of time.

The notice appears to us to have been legally given.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.