Milier v. Whitfield

16 La. Ann. 10 | La. | 1861

Merrick, C. J.

This suit is against the defendant as endorser of a promissory note. The answer is in these words :

“The defendant pleads the general denial and want of amicable demand, and prays to be dismissed, with costs.”

“ He prays for general relief. ” Signed, &c.

The judgment of the lower court was for plaintiff, and defendant a,p-peals, and contests the plaintiff’s right to recover, on the ground of the want of notice of protest.

Plaintiff contends, that the defendant cannot make this issue, for he has limited his defence to the question of proof of signature and the want of amicable demand.

In the case of Hughes v. Harrison and. wife, 8 N. S. 300, 301, it was held, that the general denial admitted the signature, and left open every other legal defence. See also 14 La. 361, 19 La. 86 and 88.

The note was dated New Orleans, and was payable at the Savings Bank. The Notary Public, charged with making protest, demanded payment at two different Savings Banks in this city — one at the corner of Camp and Lafayette streets, the other at the corner of Camp street and Exchange Place.

He protested the note, but made no certificate of the manner in which the notice of protest was served, as required by statute, but was examined on the stand as a witness. He says, referring to his invariable habit, and •without any distinct recollection of the fact, that he put a notice of protest in the Post Office of Lafayette, directed to New Orleans.

The notary states he did not know the defendant; but it does not appear that he made any inquiry to find his residence or place of business.

It is shown that the defendant, during the last ten or twelve years, has resided in the city, and that he lives on his own property, and carries on a large blacksmith and wheelwright establishment on St. Joseph street, between Foueher and Magazine streets.

It is clear that the evidence is insufficient to charge the defendant as endorser. As the notary resided in the same city with the endorser, he could not resort to another Post Office and address a notice to the endorser in this city. The defendant was entitled to notice of protest on him in person, -or at his domicil, there being nothing to show that such domicil might not have been found on diligent inquiry. See Heiss v. Corcoran & Co., 16 An. 694; 6 La. 744.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now here ordered, adjudged and decreed, that there be judgment in favor of the defendant, with costs, in both courts.