The Yazoo Whig and political register. (Yazoo City, Miss.) 1840-1842, 1841-04-02
BANK OF La. & w. CHR1s1Y.


Us. Appeal from the
BANK OF LA. & w. CHR1s1Y. LIST Jud D. La.
The Plaintiffs allege, that being endorsers
of two promissory notes, drawn by F. A..
Blafi@ and endorsed also by A. Beauvais,
which had been negotiated and become the
property of the Bank of Louisiana-they
took up the same on notice of protest, and
paid the amount to the Bank, supposing that
legal demand and protest had been made by
the Notary of the Bank-that they afterwards
discovered, that in point of fact no legal de-
mand had been made of the drawer, and
that in consequence Of such failure to show
a legal demand, they had not been able to re-
cover the amount from the previous endorser,
and they prey judgment against both Defen-
dants in solido. Judgment was rendered
accordingly in the Court of the first instance,
and the Defendants appealed.
The right of the Plaintiffs to recover back
from the Bank the amount of two notes, de-
ponds upon their showing that they paid in
error. The presumtion, resulting from the
official character and certificate of the Notary,
is that due demand was made of the drawer
and the onus is upon Plaintiffs to show
that no such demand was made. Il is not
enough to show that the Plaintiffs failed to
recover against their immediate endorser, in
case in which the Bank was not party.
The Notary certifes in his protest, that he
made dilligent enquiry for the drawer of said
note, in order to demand payment thereof,
and was informed by Mr.. "Labatut that he
resides at Point Coupee, in this State, and
is not now in this city, whereupon he pro-
tests, &C." The evidence in the case, as
well as that of the Plaintiffs against their en-
dorser, is entirely satisfactory that the drawer
had his domcile in New-Orleans at the time
of the maturity of the note, and that no de-
mand was made of him or at his domiclle,
as required by law,t0 fix the liability of the
endorsers.
But the Defendants counsel has called
our attention to bill of exceptions taken,
to the refusal of the Court to admit as wit
ness the Notary by whom the protest had
been made, and who was also party defen-
tffs could not deprive the Bank of the testi-
mony of their agent, by making him party,
vet it appears to us that the Court did not err
in rejecting him as witness.
The Bank had already the advantage of
the official act and certificate Of the same
Notary, which he could neither contradict
nor strengthen by any verbal statement.
The right of the Plaintiffs to recover of the
Notary himself, in solido with the Bank, de-
ponds upon other principles. There is no
privity between the Plaintiffs and the No
tary, who. was the agent of the Bank and
not theirs. Those cases in which Notaries
have been held responsible, for neglecting to
make proper demands or to give due notice
of protest, were between such Notaries and
those by whom they were employed.
It is therefore ordered ,adjudged and de-
creed, that the Judgment of the District
Court be affirmed, so far as it relates to the
Bank of Louisiana, with costs-but that it
be reversed and annulled, as il relates to the
Defendant, William Christy, and that it be
for him, with costs in both Courts, &c.