
    Barriere & Co. v. Samory.
    This case presents a question of facts merely. The point being whether the endorser of a note Was not discharged in consequence of want of due diligence on the part of the holder to obtain payment from the maker. >
    from the Fifth District Court of New Orleans, Augustin, J.
    
      L. Janin and N. L. Johnson, for plaintiífs.
    
      G. Maurian, for defendant.
   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.

Ogden, J.,

dissenting. I find myself unable to concur, with my brother Judges in the conclusion to which they have arrived, that there was due diligence on the part of the holder of the note to find- the residence of the maker.

It has been always held that due diligence to obtain payment from the maker, is a condition precedent, on which the liability of the endorser depends. In the case of Magruder v. The Bank of Georgetown, 3 Peters’ R., the Supreme Court of the United States held that the endorser having become administrator of the drawer’s estate, who had died before the m'atufity of the note, did not relieve the holder from the obligation of demanding payment of the note in order to charge the endorser.

Scmory is sued as second endorser of Feste's note. The holders of the note,the maker and the endorser all reside in New Orleans. Feste, the maker, was a married man, a house-keeper, and had been for eighteen years well known among the store-keepers on Chartres street. At the time the note was protested, he was living in a rented house at the corner of Port and Casacalvo streets in the third district. There is no evidence that he was absent from the city at the time. The agent of the holders of the note were in the city at the time, and was called upon by the clerk of the notary who was charged with presenting the note and demanding payment for information as to Feste's residence. This agent was a witness on the trial and he states that he told the clerk that Peste resided somewhere in the third district — he says he thinks he told him he would endeavor to find out Mate’s residence and that the clerk replied he was going somewhere else to enquire, or that he was going to Petipain’s to enquire. The clerk did go to Petitpain’s, but he states in his testimony that he did not ask Petitpain where Peste lived. In the testimony of this witness given on a previous trial of a suit on the same note against Petitpain, the first endorser, he said that he did ask Mr. Petitpain where Peste resided, and that he answered him to protest the note. In giving his testimony on that trial of this case, he says in one part of his testimony, that he cannot recollect whether he made a demand of Petitpain for Peste's residence. He uses this language: “ generally when I call on 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 lived.” Petitpain was the father-in-law of Peste, and the defendant, Samory, was Petitpain's brother-in-law, and ha'd his store near that of Petitpain.

With the fact conceded that Peste had a residence in the city, and that the notary’s clerk called at his father-in-law’s store for information as to Peste’s residence, how is it to be accounted for that he went away without gaining that information or making any further attempt to find the residence. The only explanation of which it is susceptible, is that furnished by himself, that Mr. Petitpain told him to protest the note. In this correction, he says: “ that after having done every thing he had stated, and Mr. Petitpain telling him to protest the note, caused him to cease making any further enquiry for the drawer. This witness was examined several times and with great minuteness and particularity. The diligence used by him consists according to his statement in his enquiring at Pesie’s late store, at his former residence on Rampart street, and having made enquiries at a coach maker’s, and at a livery stable in the immediate vicinity of the former residence of Peste. At one of these places he was informed that Peste resided in the third municipality, and yet he did not go into the third municipality.

By the agent of the holder of the note, he was also informed that Peste’s residence was in the third municipality. To constitute due diligence which must always depend on the particular circumstances of the case, I think it was the duty of the agent of the' holders of the note on being applied to, for information as to Pesie’s residence, to have made some efforts to ascertain it, and that it was the duty of the notary’s clerk when he went to Petitpain, to have endeavored to find out from him where his son-in-law’s residence was, and to have gone into the third municipality where he had been informed Peste lived and there made enquiries for him at public places. The proposition of the appellant’s counsel, that with proper diligence and enquiry, the presentment and demand of payment could hate been made at Peste’s residence is, I think, fully sustained by the evidence. It is not only shown that he had a residence in the city, which must have been known to many persons living in the third municipality, but it is shown that process from the courts had been served on him, at that domicil. 1 cannot consider as of much weight the testimony of one of the officers of the court, that he had tried for some time to find Peste’s residence without succeeding, because this witness does not state the means used by him to find the residence, and it is therefore impossible to judge whether he used due diligence. The certificate of the notary after stating that he had made careful search and diligent enquiry for the drawer, and that he could not find him or his present domicil, goes on to say that it being also the wish of the first endorser that the same should be protested, he had accordingly protested the note. I am satisfied from this certificate and the evidence in connection -with it, that the notary’s clerk did not endeavor to ascertain from Petitpain where Peste resided, and did not go into the third municipality whore he knew Peste resided, because Petitpain, the first endorser, told him to protest the note, and although as to Petitpain, this was sufficient to relieve the notary from the necessity of making a demand of payment from the maker, it did not have this effect in regard to the defendant, Samory, who, I think, is released from liability as endorser, on account of the laehes imputable to the holders of the note.

The judgment of the court below ought in my opinion to be reversed and one rendered for the defendant. 
      
       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.
     