
    The Bank of Louisiana v. James Holmes.
    Proof that the endorser of a note, who had been discharged by illegality in the pro. test, subsequently solicited and obtained indulgence from the holders, will not ren-der him liable, unless it be also shown that he was atvarc, at the time of the application, of the circumstance which liberated him.
    Appeal by the plaintiffs, from a judgment against them as in case of a non suit, rendered by the District Court of East Feliciana, Johnson, J.
    
      Bowman, for the appellants,
    cited 13 La. 368. Chitty on Bills, 373. Ed. 1836.
    
      Merrick, for the defendant.
    The burden of proving that the defendant knew of his discharge at the time he asked for indulgence, is upon the plaintiffs. 12 La. 465. 13 La. 421, 2 Rob, 158. Story on Bills, No; 320.
    
      Lawson, on the same side,
    cited 8 Mart. 147. 11 La, 17.
   Martin, J.

The bank is appellant from a judgment refusing to declare the liability of the defendant, as endorser of a note, in consequence of the absence of a legal protest. The counsel of the bank does not pretend that there was a legal protest; but contends that the liability of the defendant results from his having solicited and obtained indulgence from the bank. This would be true, if knowledge of the defendant’s having been discharged, by the informality of the protest, at the time he solicited indulgence, could be shown. But in the absence of any proof of his knowledge of the circumstance which liberated him, the claim of the bank on him, cannot be sustained. 12 La. 465. 13 La. 421.. 2 Rob. 158. Story on Bills, No. 320,

Judgment affirme /  