
    
      LOUISIANA STATE BANK vs. ROWELL.
    
    Appeal from the court of the 3d district.
    A womafi could not of tue Louis-iar.a code, ns surety," though r-lie gave to her engagement the fonn °*" an endorse^ 011 a
    may^epa!-that^hevias though the 0“th^faceof higher obiu
    
   Porter, J,

delivered the opinion of . . . , , /. eourt. . 1 his is an action against the deten-dant as endorser of a promissory note. The petition charges the responsability in the usual • • ■ ’ mode. '■

The answer consists of a general denial, and a plea that the defendant signed her name as surety, and that by law she could not enter into such an engagement, •

There was judgment against her in the court of the first instance, and she appealed,

The note is in the following three years after date, I promise to pay to Mrs. Sarah Rowell, or order, at the office of discount and deposit of the bank of Louisiana at Baton Rouge, the sum of four hundred and ninety dollars, with interest at the rate of seven per cent., but if not punctually paid, to bear an interest of ten per cent, per annum, from date, agreeably to an act of the general assembly, approved the 24th of January, 1825, value received in the liquidation of a debt to the Louisiana State Bank—this being the third instalment. Baton Rouge, March 12th, 1825.” (Signed) Samuel Steer.

(Endorsed) Pay to the order of the Louisiana State Bank, for Sarah Rowell, Samuel Steer per proc.

We decided in the case of Lacroix vs. Coquet, that a woman could in no case bind herself as surety. That decision was made on a positive law of the Partidas, which on no principle of construction could be considered as repealed by our old civil code. The amendments to that work it is said have produced that effect. This may be so, but as this engagement was entered into previous to the promulgation of these amendments, the case must be decided by the law as it stood anteri- or to their enactment.

Before the merits of the ease can be en-quired into, it is necessary to examine the opinion of the judge a quo, in relation to the admission of the maker of the note as a witness. He was, as the bill of exception states? called and sworn as a witness on the part of the plaintiffs, and the defendant asking him on the cross examination, “did not the defep-dant endorse the note, on which this action is ’ instituted, as surety for a debt due by you to the State Bank of Louisianathe question was objected to, and the objection was sus" tained by the court.

On the argument here, the competency of the witness has been denied on the provisions of the act of 1823, page 76, which provides “that the drawer of a note, bill of exchange, or other negotiable paper, shall never in any case be admitted as a witness in any civil cause, or suit brought by the holder of any such note, order, bill nf exchange, or other negotiable paper, against any of the endorsers of said note, 4*c.” The terms of this enactment do certainly exclude the witness offered in this case, but the plaintiffs by examining him as a witness in chief, waved the objection, and conferred on the defendant the right, in the cross examination, to put to him any legal question.

The legality of the question put to the witness, in this instance, cannot be doubted, if the defendant instead of having passed the note to the plaintiffs for value received by her, was in truth the surety of another for a debt due by him, she had a right to shew it. When the law incapacitates persons from making contracts of a particular kind, its provisioné cannot be evaded by giving to these contracts a different form from that forbidden by law’ when in substance the contract is that prohibited. To sanction such agreements, would be permitting that to be done indirectly, which the law will not permit to be done directly.— Thus we have often decided, that the law which renders wives incapable of becoming sureties for their husbands, could not be evaded by giving to the contract the form of an engagement in solido.

Denis for the plaintiff— Watts for the defendant

It is, therefore, ordered, adjudged, and de-f creed, that the judgment of the district court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed* that this cause be remanded to the district court, to be proceeded in according to law, the appellee paying the costs of this appeal.  