
    Dominique Lanata v. J. L. Grass and E. Massou & Co.
    In an action against the endorser of a draft, he attempted to prove, that the acceptor did not reside at the place where the draft was presented for payment. The evidence was objected to, because the answer contained no allegation under which it was admissible. Held: It was admissible under the plea, that the_draft had not been protested according to law.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
      Z. Latour, for plaintiff.
    
      Bermudez and Beauregard, for defendants.
   By the court: (Slidell, J., absent.)

Rost, J.

E. Massou Sf Co. are appellants, from a judgment rendered against them, as endorsers of a draft drawn upon and accepted by Dupuy and Grass of this city, and held by the plaintiff.

The defence in the district court was, that the draft had not been protested according to law, so as to make the endorsers liable.

The protest shows, that the notary went to No. 75 Old Levee, as indicated on the draft, in order to demand payment thereof, and found the same shut; and, on inquiry in the neighborhood, the acceptors could not be found, nor any one who would pay the draft. Without any further inquiry, the protest was made.

On the trial of the cause, the defendants offered witnesses to prove, that Dupuy and Grass never occupied the house No. 75 on Old Levee street, in order to make out the plea in their answer, that the protest was illegal. The court refused to admit the testimony, on the ground, that the answer contained no allegation under which it was admissible. The defendants took a bill of exceptions.

It not being shown, that the direction on the draft, upon which the notary 'acted, was given by the acceptors, we are of opinion, that under our liberal system of practice, the evidence was admissible under the plea of the defendants, that the draft had not been protested according to law. If the judge thought the plaintiff was taken by surprise, he might have continued the case to another day, but the evidence should not have been rejected.

It is ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law, and in conformity with this opinion; and, that the plaintiff and appellee pay the costs of this appeal.  