
    LANDRY vs. STANSBURY.
    APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE , ' JUDGE THEREOF PRESIDING.
    No recovery can be had of the endorser, if demand of payment be not made on the maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such demand is shown.
    
      Eastern Dist.
    
      February, 1837.
    Where the maker of the note is dead on the day it is due and payable, and an administrator is appointed, it is unnecessary to make a demand on him, in order to bind the endorser, because he is not authorized to pay any claim against the estate until the expiration of a certain period of time.
    This is an action against the endorser of the following promissory note:
    $2000. “Donaldsonville, (La.) Nov. 11th, 1830.
    “In all the month of March, 1834. I promise to pay to Mrs. Maria Stansbury, or order, the sum of two thousand dollars, for value received.”
    “FRANCIS A. BOND.”
    Endorsed, “ Maria Stansbury.”
    The plaintiff alleges, that when said note became due and payable, to wit, on the 3d April, 1834, it was presented at the domicil of the drawer, and payment demanded, and there being no funds there to pay the same, it was protested by a notary, for non-payment, and due notice thereof given to the defendant. - He prays judgment for the amount of the note, interest and costs.
    The defendant admitted her signature, and pleaded a general denial. She further averred, that she was not liable, as endorser, because the note was not legally protested, and that she was not legally notified thereof.
    The notary states in his protest, that on the day the note became due, he went to the domicil or residence of the drawer, where he found no white person on the premises, and the doors of the house fastened. He then protested the note, and deposited the notice of protest in the post-office of the parish where the endorser resided, enclosed and directed to her in a letter.
    The evidence showed that Francis A. Bond, the maker, died, and that Narcisse Landry, the plaintiff and holder of the note sued on, was appointed administrator of his estate on the 11th day pf January, 1834. It was admitted that the only demand of payment was made at the late domicil of the deceased, as stated in the protest. No demand was made 0f administrator, who was himself the holder of the note.
    Upon this evidence the district judge rendered judgment foi' the plaintiff, and the defendant appealed.,
    
      Adolphe Seghers, for the plaintiff,
    maintained that the judgment was correct. The demand of payment was properly made at the drawer’s residence, after he had died, when it is not shown he had left any heirs in the state. A demand on the administrator was unnecessary, as he was the holder. If the banker is himself the holder, it is sufficient for him to see whether he has sufficient funds. 10 Martin, 18, 645. Pothier, contrat de change, JYo. 146. Chitty on Bills, 268. Bayley do., 128. '
    
      Ilsley, contra,
    
    relied on the case of Toby vs. Maurian, 7 Louisiana Reports, 493.
    
      J. Seghers, for the plaintiff,
    argued and cited authorities to show that notice of protest in this case was regular.
   Martin, J.,

delivered the opinion of the court.

The defendant, sued as endorser of a promissory note, is appellant from a judgment against her, and seeks to be relieved under an allegation that no demand was made from the drawer or his representative, and that no legal- notice was given to her.

The facts of the case are these : The drawer died, and an administrator was appointed to his estate before the date or period at which the note became payable. On that day the notary went to the domicil, or late residence of the drawer, but found no white person on the premises; and he certified that notice was served on the defendant by a letter directed to her, in the parish of Ascension, and deposited in the post-office at Donaldsonville, on the day following that of the protest.

The reversal of the judgment is claimed on the authority of the case of Toby vs. Maurian, 7 Louisiana Reports, 493; in which we held that “ no recovery can be had of the endorser, until demand of payment has been made on the drawer or maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such a demand be shown.” In that case, there had been no administrator or curator appointed to the estate of the drawer. The demand, therefore, might have been made of bis heir or widow in community. In the present instance, there -was an administrator legally appointed, contrarily with whom alone all claims against the estate were to be settled. In the case of Hale vs. Burr, 12 Massachusetts Reports, 86, the Supreme Court of that state decided, that when the legal representative of an estate is prohibited by law from paying any claim against it until after the expiration of a twelve-month, no demand need be made on him for the payment of any note of the deceased, becoming payable within that time, in order to charge the endorsers. Administrators in this state being under a similar prohibition, it follows, that the demand on them would be nugatory, as they are under no legal or moral obligation to comply therewith. Lex neminem corgit ad vana. This case is very different from that of Toby vs. Maurian, and cannot be distinguished from that of the case of Hale vs. Burr, decided by the Supreme Court of Massachusetts referred to.

No recovery can be had of the endorser, if demand of payment he not made on the maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such demand is shown.

■Where the maker of the note is dead on the day it is due and payable, and an administrator is appointed, it is unnecessary to make a demand on him, in order to bind the endorser, because he is not authorized to pay any claim against the estate until the expiration of a certain period of time.

The notice appears to us to have been legally given.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  