4 Rob. 342 | La. | 1843
The defendant, and appellant, assigns, as an error apparent on the face of the record, that the court overruled his exceptions to its jurisdiction on the score of commorancy. The petition shows that his residence is in the parish of Concordia. The counsel for the Bank has urged, that the suit was rightly brought in the District Court of the First Judicial District; the defendant, on the face of the note sued upon, and made payable in New Orleans, having elected his domicil in that city; and, secondly, that this is a suit relating to a partnership between the parties. It is true, that by the act of 1818 made in favor of the banks, drawers of notes, made payable in the city of New Orleans, by persons who have no domicil therein, elected a domicil in that city, and were suable on such notes, in the courts sitting there. Greiner’s Digest, No. 187, et seq. But this act was, in our opinion, repealed by the 25th section of an act of Assembly, approved March 25th, 1828, p. 160, which provides, that all the rules of proceeding, which existed in this state before the promulgation of the Code of Practice, with a few exceptions, none of which touch the act of 1818, are abrogated. This latter act, certainly established a rale of proceeding, and must, consequently, have been repealed. The counsel for the plaintiffs has urged, that the Code of Practice, art. 165, No. 2, has made an exception to the rule, that every defendant must be sued before the court of his domicil, in matters relative to a partnership. We are of opinion, that when the stockholder of a bank gives a note to the bank, even for the re-payment of a sum which he was entitled to borrow, under the charter of the bank, the claim of the institution on him, is of the same nature as that it may have against any other borrower; and that the obligation of the stockholder results, rather from his note, than from any matters relative to the partnership.
The District Court, in our opinion, erred in overruling the defendant’s exceptions.
It is therefore ordered, that the judgment be annulled, the de
