Toby v. Maurian

7 La. 493

• Court: Supreme Court of Louisiana
• Decided: January 15, 1835
• Status: Published

Opinion

Martin J.,

delivered the opinion of the court.

The defendant is sued as endorser of a promissory note, for one thousand dollars, executed by Peychaud. Judgment was rendered against him for the amount claimed. He now claims a reversal of the judgment, on the ground that he was condemned as endorser to pay the sum demanded, when payment was never demanded from the maker, nor from any person representing him, or succeeding to his -rights and obligations.

The record shows that the maker of the note, died on the last day of grace, or during the night preceding it. That when the notary’s clerk called at the house and late domicil of the drawer of the note sued on, to demand payment, he found no person present, except a mulatto woman, who informed him of the death of Peychaud, and pointed him to the corpse in the coffin. The note was then protested without any inquiry or demand being made, of any heir or representative of the deceased.

It is clear that no recourse can be had against the endorser of a note, until a demand has been made on the maker, if living, or on his heir or legal representative after his death, unless the impossibility of making such a demand is made apparent. This has not been shown in the present case. The authorities on this point, and which support the position here laid down, are numerous ; of the highest character and authority, and conclusive on this subject. Chitty on Bills, 317, ed. 1828. Bayley do. 128. 2 Practical Abr. of Am. Cases, 288, 292. 3 Peters, 89. 7 Ib. 287. 7 Martin, 364. 1 Pardessus, 392. Pothier Contrat de Change, No. 146.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and that judgment be entered for the defendant, with costs in both courts.