Banks v. Brander

13 La. 274

• Court: Supreme Court of Louisiana
• Decided: April 15, 1839
• Status: Published

Opinion

Martin, J.,

delivered the opinion of the court.

The defendants, sued as acceptors of a bill of exchange, pleaded the general issue, and that they accepted the bill for the accommodation of the drawer, having no funds of his in hands, to the knowledge of the plaintiffs. That thus they are sureties of the drawer, who is first to be sued, and . . , , . 1 „ „ . has unincumbered property in the parish or JLerrebonne. They averred themselves ready to advance the costs of discussion : further, that the plaintiff indulged the drawer with a delay of payment, and agreed with the defendants to receive sugar in payment of the draft; that they have tendered him the sugar, and he has refused to receive it. There was judgment for the plaintiff, and the defendants appealed.

The plaintiff may strike oat his endorsement on tlte bill at the trial. A defendant who insists on his plea of discussion, must specifically point out property and tender the costs. It is not sufficient to aver that the principal debtor has property in a particular parish, and that the party is ready to advance the costs of discussion. The acceptor of abill is bound absolutely ; and the holder is not required to sue either the drawer or endorsers.

Our attention is first drawn to two bills of exception. The first is to leave being granted to plaintiff to strike out his own endorsement on the back of the bill.

It does not appear to us the court erred; the endorsement being in blank.

The second bill is to the trial of the cause before the exception of discussion was acted upon, on a Friday, according to the rules of the court. The District Court observed, that if the defendants were entitled to discussion, it is notan exception, but would operate a modification of the judgment. The exception ought to have been disregarded, because the defendant did not specifically point out any property of the drawer, but contented himself with naming the parish in which he alleged such property was, and with averring his readiness to advance the costs of discussion, without making the actual tender. Louisiana Code, article 3016.

On the merits, the signature of the defendants, as acceptors of the bill, was admitted. They failed to prove the alleged promise of the plaintiff to receive the sugar in payment. The acceptor of a bill of exchange is a principal; he owes the money absolutely to the holder of the bill, who is not bound to sue either the drawer or any endorser, on the failure of the acceptor to comply with his engagement. He is not the surety of the drawer, the obligation of whom depends on the failure of the acceptor to comply with his own.

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