Barriere v. Samory

10 La. Ann. 107

• Court: Supreme Court of Louisiana
• Decided: January 15, 1855
• Status: Published

Opinions

Slidell, Ov J.

The District Judge was of.opinion that reasonable diligence had been used to find the maker, and we do not feel prepared to dissent from his conclusions. We refer to the opinion prepared by him

*, and also to the following portion of the evidence:

The note was received by the notary as usual after the closing of the bank. The notary’s clerk says: I went in the first place to Mr. Feste’s late store in Chartres street, and found it in the occupation of other parties. I enquired of the occupants of the store where Feste resided and gained no information. 1 then went to his late domicil in Rampart street, and made enquiry there for Mr. Feste, and I was informed by a lady that he had removed from that house some three months previously, and that she did not know where I could find him. I then made enquiry of a Mr. Loeg, who kept a carriage repository in the same street and near to Feste’s late domicil, and he told me that he believed Feste lived somewhere in the third municipality, but could not tell me where, and that he believed that Feste and his family were then out of the city and over the lake. I then wont to the store of Mr. Fetitpain, the first endorser, and showed him the note, told him the endeavors I had made to find Mr. Feste, and he told me to protest the note. I did not ask Mr. Fetitpain where Mr. Feste lived, but generally when I call upon a first endorser, I state the steps I have taken to find the drawer. I take it for granted that that is as much as if I had asked where the drawer resided. The call on Fetitpain, by which the notary’s deputy closed his enquiries, was about 8 o’clock in the evening. He says: I did not call on Samory, because I had labored for three or four hours to find the whereabouts of Feste, and that FeUPpain had told me to protest the note, .and it was then after 8 o’clock in the evening.

The protest was during the worst part of the epidemic of last year, and there was a considerable number of persons absent from the city with their families. There was a suspension of all ordinary business that was not of an urgent character.

A deputy Sheriff who had been employed to serve process on Feste, states various unsuccessful enquiries he had made and adds, “ It was more than a week from the time I was looking for Feste until I served the papers on him in the Sheriff’s office.”

Another witness says; In the beginning of June, I was book-keeper of Mr. Moreau, and had an account against Mr. Feste. I went to the late domicil of Mr. Feste, on Rampart street, and was informed by a servant that Feste had removed from there, but could not tell me where. I then applied at the livery stable next door from B. Milieux, Jr., he replied that he did not know where Feste resided, but he thought it was in the third district somewhere. I returned there some days after this, but could not ascertain his residence. I went into the third district, in St. Ferdinand street and adjoining streets, but could not ascertain the residence of Feste.

A Sheriff’s officer says? I served papers on Feste in the alley-way of the court-hous'e. They had been in the hands of an officer some days without being able to serve them.

It was admitted at the trial, that in the directory for the jmar 1853, the residence of Victor Feste' is put down as on Rampart street, between St. Louis and Toulouse streets, and that his store was at No. 22 Chartres street. Also, that in the directory published i'P January, 1854, his residence is given as being at the corner of Port and Casácalvo streets.

Judgment affirmed with costs.

Voobhies, J., Buchanan, J., and Spoefobd, J., concurring.

From, the allusion made by the Chief Justice to the opinion of the District Court, it has been thought proper to insert it. — Rep.

The defendant being sued as endorser, has raised the technical objection that no demand had been made to the maker of the note at maturity, and therefore that he is discharged.

It appears that the notary’s deputy, Barrí/, on the day of maturity after three o’clock, went in search of the maker of the note, Victor Feste, and following the indications in the directory for 1858, went first to Rampart street near Toulouse, and upon enquiry in the vicinity, was told that Feste had removed since the beginning of June. Then Barry went to No. 22 Chartres street, the former place of business of Feste, and there did not find him, then he went to the office of the holders of the note, and there was told that Feste had removed somewhere about the Lower Cotton Press. Then Barry applied to the first endorser, Fetitpain, who did not tell him where Feste resided, but told him to protest the note; Barry says that it was after (8) eight o’clock at night when he went to Fetitpain.

The doctrine is well established that due diligence to find the maker of the note will excuse the want of presentation and demand.

In this case the difficulty in finding the maker was creat id by his own act, the breaking up of his business and the late removal of his residence.

The kind of diligence used by the notary, is not certainly of that character which would justify a return of non est wwentus from an officer who has whole days and weeks to institute his search and to make his return, but for the notary who is so limited in point of time, and who has employed four hours in the search of the maker of a note and made enquiries as proved in the evidence, the court must consider that the diligence of that notary, although unsuccessful, covers fully the legal ground, and excuses the want of demand.

The evasive answer given by Fetitpain who is Feste's father-in-law, may have impressed the notary with the idea thati^iie was concealing himself from his creditors, considering the fruitless search which he had made for him during the afternoon.

It is therefore adjudged and decreed, that plaintiff recover from 0. Samory four thousand dollars with costs of protest, interest from the day of protest ami costs of suit.