text:
    Dees, Administratrix, v. Tildon et al.
    The sale of the property of a succession does not amount to a ^partition among the heir* and widow in community. The sale is only a preliminary step to a partition ; from its proceeds the debts and charges are tobe deducted, and the residue is to be divided.
    An administrator may be appointed, though the property of the succession has been sold, and a part of the heirs are of age and have accepted unconditionally. Por such of the heirs as were minors the succession could only be accepted with benefit of inventory; and in such case3 the Civil Code expressly authorises the appointment of an administrator to manage the succession until a partition is made. C. C. 1040.
    In an action by an administratrix against the purchaser, for the price of property of the sue' cession so Id per aversio?iem, proof of an agreement by the administratrix and the heirs of age to make a deduction from the price in proportion to an alleged deficiency in the quantity, is inadmissible. Per Curiam: The sale being per aversionem, the administratrix could make no such agreement in her representative capacity; nor could the heirs of full age affect the interests of the minors by such a contract. Any agreement by these parties, would be an obligation personal to themselves.
    A co-heir who purchases at the sale of the hereditary effects, is not bound to pay the surplus of the purchase money over the portion coming to him, until his portion has been definitively fixed by apartition. C. C. 1265. But this right is personal to the heir, and does not extend to a purchaser at a succession sale who subsequently acquires the interest of one or more heirs, or has made payments on account of the shares of other heirs. The amount which he will be entitled to receive as the purchaser of the rights of the heirs, being uncertain, and •only capable of being determined upon a final partition, afterpayment of the debts of the succession, cannotbe pleaded in compensation of a demand for the price of the property of the succession bought by him, the object of the demand being to collect the assets for legal dis' tribution. On the finalliquidation of the succession, the purchaser will be entitled to receive the portionsof the heirs acquired by him, and the sums paid by him on account of the shares of others.
    In an action for the price of property purchased at the sale of a succession, evidence on the part of the purchaser of payments by him of debts of the succession, is inadmissible. Per Curiam : Those debts could only be paid in due course of administration, by authority of the judge, and constitute no offset against the plaintiff’s demand. C. 0.1056.
    The surety of a purchaser at a judicial sale is not bound in solido with the principal.
    APPEAL from the District Court of East Feliciana, Johnson, J. The facts of this case are stated in the opinion of the court, infra,

      Z, S. Lyons, for the plaintiff.
    1, There never was any partition of the estate of Dees, There is no judgment of partition. McCuLlom v. Palmer, I Rob, 514. C. C. arts. 1261 to 1291. 2. Courts of Probate have exclusive jurisdiction over all matters concerning successions. 17 La. 238, 248. 15 La. 56. 3. The succession of Dees, being in the course of administration, must remain under the control and superintendence of the Court of Probates and its officer. It is apparent that there are creditors, minor heirs, and major heirs, interested. 3 Mart. N. S. 563. 5 La. 386. 17 La. 500. 7 Rob. 27. 4. Heirs and legatees can claim nothing from the succession until there has been a liquidation ef the estate, an account rendered by the administrator, debts paid, commissions and other lawful expenses deducted, and the balance to be paid over ascertained. C. C. arts. 1056 to 1061, 1066. Plarrell v. Harrell, 17 La. 376. 5. The administratrix was without any authority to bind the estate, or to contract so as to diminish its amount. 1 Rob. 129.'

      Merrick, for the appellants.
    1. As the widowin communityand the major heirs had accepted the succession purely and simply, and had made a partition by a sale of the effects, it was instantly known how much belonged to each: and as they had rendered themselves personally responsible for their virile portion of the debts, so they had acquired their portion of property in the estate absolutely, and it could not be divested, nor could an administrator subsequently appointed, or any other pers m, take it from them. The widow in community could only represent her own interest and that of the minor heirs, who alone had the right of administering, with the benefit of inventory, the portion coming to Ihem. O. C. 1002. Had letters of administration been granted to the plaintiff on the succession, the administration would have terminated as to the heirs of age accepting the succession as soon as the partition had been made. C. C. art. 1040. An administration granted after partition cannot confer any power over the portions of the heirs, ascertained to belong to them by the partition. C. C. arts. 1129,1130, 1042. See also arts. 1046, 1049, 1050 and 1055. Act 15 March, 1828. 2 Mart. N. S. 486. 2. The court below erred in refusing Tildón the right to prove, that the administratrix and heirs of full age had agreed to allow him a credit for a deficiency in the quantity of land. 3. The court below also .erred in excluding the evidence of payments to the heirs of full age, and the tutor of the minor, and also in excluding the notarial acts of transfer to the defendant, Tildón. The heirs of full age who transferred their interest in the succession to the defendant, Tildón, by the very act of transfer (if they had not previously done so by making partition,) accepted ttíe succession purely and simply. Civ. Code, 988. Tildón, by accepting the transfer made by the heirs to him, becomes ipso facto released of so much of the debt, for confusion instantly takes place. Civ. Code, 2214, 2215. 4. The court erred in refusing to allow defendants to prove that there were no debts due by the succession, and I,hat the heirs of full age and widow and tutors had made an arrangement, by which the interests of certain heirs were to be paid and the estate settled. 5. The court below erred, in rendering a judgment, in solido, on a contract of suretyship. See C- C. arts. 2089, 3014, 3022. 3 Rob. 258. 6. Should the foregoing positions be overruled, yet the judgment ought to have reserved to the defendant. Tildón, the right to claim the payments he has made to the heirs, and the interests he has purchased in the succession.
   The judgment of the court was pronounced by

King, J.

This is an action to recover from Stephen Tildón, as principal, and Watkins, as surety, the price of a tract of land adjudicated to the former at a sale of the property of the succession of James Dees. The land has passed into the hands of Mrs. Tildón, subject to the mortgage retained in favor of Dees’s succession, and the plaintiff asks to enforce the judgment prayed for in this suit, upon the hypothecated property in her possession.

The defences set up are, that the succession of Dees has been partitioned among his widow and heirs; that it has been accepted purely and simply by the heirs of full age and the widow; that the appointment of the latter as administratrix, after a partition, was irregular, and conferred upon her no authority to prosecute this suit, for more than her share of the community and the shares of the minors. It is further alleged that large payments have been made on account of the price; that there is a deficiency in the quantity of the land, for which the plaintiff, as administratrix, agreed to make a reduction; that the defendant,^ Tildón, has purchased the interests of two of the heirs in the succession, and has made payments on account of the shares of two others, which should be imputed to the price; and that he has paid a number of debts of the succession, which should also be compensated against the plaintiff’s demand.

The court below rendered a judgment in favor of the plaintiff for the sum claimed, after deducting the payments made on account, and refused to allow, as offsets, the shares of the heirs purchased by Tildón, and the debts of the succession paid by him, from which the defendants have appealed. The defendants contend that when a sale of the property of Dees was made, the respective portions of the heirs and widow in community immediately became fixed and known, and that this was in effect a partition. The position is clearly untenable. The sale was only a preliminary step towards a partition. From its proceeds are to he deducted the debts and charges, and the residue is to be divided among the heirs. That debts exist in the present instance is fully shown by the defendant Tildón himself, who offers in compensation several which he has paid.

The fact that a sale of the property of the succession had been made, and that a part of the heirs were of full age and had accepted unconditionally, offered no objection to the appointment of an administrator. Several of the heirs were minors, for whom the succession could only be accepted with the benefit of inventory ; and in such cases the Code specially authorises the appointment of an administrator, upon whom the management of the succession devolves, until a partition be made among the heirs. Civ. Code, art. 1040. As administratrix, the plaintiff represented the entire succession; and had full authority to collect all its dues, for the purpose of paying the debts and partitioning the residue, if any, among the heirs, or their representatives.

The court below refused to admit of proof of an agreement of the heirs of full age and the plaintiff, to make a deduction from the price of the land proportioned to an alleged deficiency in the quantity, to which the defendants excepted. The coui’t did not, in our opinion, err. The sale was per aversionem, and the administratrix was without authority to make such an agreement in her representative capacity, for a reduction of the price ; nor could the heirs of full age affect the interests of the minors by such a contract. Any agreement made by these parties, is an obligation personal to themselves. 8 Mart. N. S. 451. 1 Rob. 119.

Tildón offered testimony to show, that he had purchased the interests of two of the heirs in the succession, and that he had made payments to two other heirs^ of the supposed amount of their inheritances, with a view of applying the sums thus paid towards the extinguishment of the plaintiff’s demand. The evidence was rejected, and we think correctly. The co-heir of age, who purchases at the sale of the hereditary effects, is not bound to pay the surplus of the purchase money, over the portion .coming to him, until his portion has been definitively fixed by a partition. C. C. art. 1265. This right is personal to the heir, and does not extend to the purchaser at a succession sale, who subsequently acquires the interest of one or more of the heirs. The amount which the defendant will be entitled to receive in his representative capacity is uncertain ; it can only be determined upon a final partition, after the payment of the debts, and cannot be offered in compensation against the demand of the plaintiff, the object of which is to collect the assets for legal distribution. C. C. 1066. On the final liquidation of the succession, the defendant will be entitled to receive the portions of the heirs whom he represents, and the sums which he has paid on account of the shares of others.

Evidence offered by the defendant to show the amount of debts which he had paid for the succession, was also excluded. The judge did not, in our opinion^ err. Those debts can only be paid in a due course of administration, with the authorityonly of the judge, and constitute no offset against the plaintiff’s demands. C. C. art. 1056.

The judgment of the court below is in solido, against Tildón sxiAWatkins. In this respect it is erroneous, and must be corrected. The obligation of these parties is not joint and several.

It is therefore ordered, that the judgment of the court below be amended, so that, instead of a judgment in solido against the defendants S'. Tildón and Wat Jcins, there be judgment against said Tildón, as principal, and said Watkins, as surety, and in other respects that said judgment be affirmed ; the appellee paying the costs of this appeal, and the appellants those of the court below.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Graham et al. v. Burckhalter.
    In proceedings by attachment all the forms prescribed by law mustbe strictly observed, under pain of nullity.
    Where an attachment is obtained in an action in which plaintiff claims a certain sum, with interest from a date anterior to the institution of suit, a bond for a sum exceeding by one-half the principal, exclasive of interest, is insufficient; nor can the defect he cured by subsequently furnishing bondfor a sufficient amount. Per Curiam; A sufficientbonct was a condition precedent to issuing the attachment. C. P. 245.
    PPEAL from the District Court of Washington, Jones, J. Plaintiffs attached certain slaves belonging to the defendant, a non-resident. The latter obtained the dissolution of the attachment, on the ground that the interest claimed by plaintiffs had been omitted in calculating the amount of the bond. The amount of the bond given was that fixed by the clerk in the order of attachment. The plaintiffs, on the application of the defendant for the dissolution of the attachment, tendered an additional bond, in a sum sufficient to supply the deficiency of the first. The court refused to receive it, and the plaintiffs appealed.

      Halsey, for the appellants.
    1. The attachment was good under the order. 2. Dntil the order had been set aside, plaintiffs were in time to complete the bond. Plaintiffs gave the bond required by the order of attachment. In this, the present case differs from those cited by the defendant. In the latter the attachment was made under a writ issued on a bond for a less sum than that required by the order, and was necessarily void. For the bond, being made a condition precedent by the court, until it had been given the order did not become absolute. Hence a writ issued without it, would want the authority of the court. Here the writ was authorised by the court, for the plaintiffs gave the bond fixed by the order. The plaintiffs complied with the requisites of article 245 of the Code of Practice, when they supplied the deficiency of their first bond by the one tendered. They obeyed both the letter and intention of the law. The defendant was secured, in the sum, and manner, required by the Code.

      J. R. Jones and Childress, for the defendant.
    The amount in controversy, including principal and interest on the day of suing out the attachment, was $1,714 97. The amount of the attachment was only $2,180 08. According to art. 245 of the Code of Practice, the order and attachment bond should have been for $2,572 45. This article is peremptory, and cannot be evaded. See 4 Mart. N. S. 430, 2 La. 85. 3 La. 58. 13 La. 306. 17 La. 437.
   The judgment of the court was pronounced by

King, J.

This suit was commenced by attachment. The plaintiffs claimed $1,453 39, with eight per centinterest, from the 17th of April, 1843. The clerk granted an order, that the writ should issue upon bond-being given by the plaintiffs in the sum of $2,180 08, which is one half over the principal debt, exclusive of interest. The counsel appointed to represent the absent defendant, moved to dissolve the attachment, on the ground that the plaintiffs had not given a bond for a sum exceeding by one-half the amount claimed and sworn to. The plaintiffs then moved for leave to amend their proceedings, by filing an additional bond for $1,000, which was tendered. This motion was overruled, and the attachment dissolved. The plaintiffs have appealed.

The judge, in our opinion, did not err, in refusing the application of the plaintiffs to amend. It has been uniformly held that, when the remedy by attachment is resorted to, all the forms prescribed by law for that proceeding must be strictly observed, on the pain of nullity. One of the pre-requisites to issuing the writ is> that the plaintiff shall annex to his petition a bond in favor of the defendant, for a sum exceeding by one-half that which he claims; and the amount sworn to, has been held to fix the amount for which the bond is to be given. The order granted in the present instance on an insufficient bond was void, and under it no attach" ment could legally issue. This radical defect, which vitiated the proceedings in their inception, could not be cured by subsequently furnishing an additional bond. A sufficient bond was a condition precedent to issuing the writ. C. P. art. 245. 3 La. 18. 17 La. 437. Judgment affirmed.


text:
    The Union Bank of Louisiana v. Bradford.
    Where a mortgage stipulates that on the mortgagor's failure to pay the debt the property may he seized and sold for cash, without appraisement, but, in the petition for an order of seizure and sale, the right to sell without appraisement is not claimed, and the petitioner prays that the property “ may be seized and sold as the law directs,” and the judge directs-that “ an order of seizure be issued as prayed for and the property sold as the law direets/, but in the writ issued by the clerk on this order, the sheriff is directed to sell for cash, without appraisement, and the property is sold accordingly, and purchased for an inconsiderable price, the sale will be null. The stipulation for a sale for cash, without appraisement, was waived by the party for whose benefit it was made, by his claiming a seizure and sale according to law — that is, by observing the formalities ordinarily required in proceedings via executivá, one of which is the appraisement of the property. The clerk was not authorised under this order, which was made in accordance with the prayer of the petition, to direct-the sale to be made without appraisement.
    APPEAL from the District Court of Washington, Jones, J. The facts of this case are fully statated in the opinion of the court, infra.

      Halsey, for the appellants.
    The Code of Practice, article 745, provides that,. “ When the sheriff sells property which he has seized conformably to the provisions contained in this chapter, he must cause the same appraisements to be made, and observe the same delays and formalities, as are prescribed for the sale of property seized in execution. The defendant relies upon a renunciation of appraisement, made by the mortgagors in the act of mortgage. They renounced the benefit of all laws requiring property seized in execution to be appraised. This was a renunciation on the part of the mortgagors. It did not impose an obligation on the plaintiffs, but conferred a right, which the plaintiffs could abandon or enforce at pleasure. The petition for the order of seizure and sale does expressly allege the renunciation of appraisement. The petitioners prayed that the property might be “ seized and sold as the law directs,” and the court granted the order “ as played for,” and directed that the property might he seized and sold as the law directs.”

    As the petitioners did not allege or prove the renunciation of appraisement,the court could not direct a sale without appraisement. In this respect the rules are the same in suits by executory process as in suits by ordinary process, C. P. arts. 63, 95, 98, 170; 734, 172, nos. 3, 5. The judgment must conform, to the prayer. 4 La. 242. 6 La. 66.
    The order required an appraisement. The court decreed a sale “ as the law directs, that is, with the observance of all the formalities prescribed by the Code of Practice. C- P. 745. The order should have been obeyed, without regard to the agreement of the parties. “ A judgment derives its force and effect from what is decreed by the court, and not from the admissions of the parties.” 8 Mart. N. S. 465.

      J. R. Jones, and Childress, for the defendant.
    The sale was provoked by plaintiffs, and • made for their benefit. They cannot take advantage of any irregularities in their own acts.
   The judgment of the court was pronounced by

King, J.

The plaintiffs have instituted this action to annul a sale of a tract of land, made by the sheriff under an execution issued at the suit of the plaintiffs against Mapes 8f Singleton. The alleged nullity is, that the sale was made for cash, without a previous appraisement, in consequence of which the land was sold at a sacrifice, to the prejudice of the plaintiffs’ rights. The defendant avers that the sale was legal, and that it was made without appraisement, at the request of the plaintiffs. There was a j udgment for the defendant in the court below, and the plaintiffs have appealed.

It is shown by the evidence that Mapes Singleton mortgaged the tract of land in question to the plaintiff's, to secure the repayment of a loan of money. The act contained the following clause : “ They, the said appearers agreeing and hereby consenting that if the said sum of §1,000 shall not be paid when the same becomes due, that then the said president and directors, their attorney or-assigns, may obtain an order of seizure and sale, and cause the above described mortgaged property to be sold to the highest bidder, for cash, without appraisement, after thirty days’ advertisement.” Upon this act, which is authentic in form, the plaintiffs presented a petition to the district judge praying for an order of seizure and sale, in which no reference was made to this stipulation, and the right to sell without appraisement was not claimed. The prayer of the petition is, that an order of seizure and sale may issue as the law directs; that the px-operty, on which petitionei’s “ have a special moi'tgage for the payment of said sum, or so much thereof as may suffice, be seized and sold as the law directs,” &c. Upon this petition the judge made the following decx-ee : “Itisox'dex'ed that an order of seizure and sale issue as prayed for ; that the propei’ty upon which petitioners have a special mortgage, or so much thereof as may suffice to pay plaintiffs’ demand, be seized and sold as the laiv directs. In the wi'it, which was issued by the clerk upon this ordei’, the shei'iff is dix-eeted to seize and sell for cash, without the benefit of appraisement, the following property, &c.; and, in conformity with this direction, the sheriff advertised the property for sale on those terms, and adjudicated it for cash, without previousappraisement, to the present defendant, for §13.

It is manifest that the sale was not made in conformity with the order of the judge. The stipulation in the act of mortgage was one made for the benefit of plaintiffs, which it was discretionary with the bank to have enforced or to renounce. It was virtually waived by claiming a seizure and sale according to law, the true intendment of which is, that the proceedings were to be in conformity with the rules which govern seizures and sales under exeeatoiy process. The order was in accordance with the prayer of the petition, and no sale could have been legally effected under it, without observing the formalities required in ordimuy cases under executory proceedings, one of which is, that the property shall be previously appraised. The clerk was not authorised, under the ox-der granted by the judge, to direct that the sale should be made without appraisement. His aet was null, and oonfexTed no authority on the shei’iff to dispense with the observance of a formality, which was so essential as the result px’oves, to the protection of the plaintiff's’ rights.

It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that the adjudication and salo-made by the- sheriff of the parish of Washington to the defendant, James A. Bradford, ou the 6th day of July, 1844, of a tract of !and situate in said parish of Washington, containing C40 acres,-being section no. 44, township no. 3, range no. 8, with the improvements thereon, seized at the suit of the Union Bank of Louisiana against Thomas Mapas and wife, and Robert Singleton and wife, be cancelled and annulled. It is further- ordered, that the appellee pay the costs of both courts.

       Eustis, G. X, lieing interested ill this case, did not sit on-its trial.


author: Slidell, J.

text:
    The Union Bank of Louisiana v. Morgan.
    Three witnesses are necessary, to render authentic an act executed before a notary by a Wind man. C. C. 2231.
    A power of attorney exeouted before a notary, in the presence of two witnesses, by a blind per* son, though not an authentic act, will be admissible in evidence as an act sous seing yriv 6, on proof oí tlie signature by oneofthe subscribing witnesses, corroborated by circumstances* G. G-1775, 2231, 2232.
    A power of attorney authorised the attorney to collect debts, give acquittances, compound, compromise, &c.; “ for andan the name of the principal, to sign any bond, obligation, contract, or agreement, or other paper whatsoever; to draw and endorse promissory notes ; to draw and accept hills of exchange”; to buy and sell all kiuds of property; “ and, for the principal and in his name, to do all such other acts, matters and things, in relation to his property, estate, affairs, and business of every kind or nature whatsoever, as he might or could do if personally present and acting therein’; it being his intention to commit to said attorney the entire management, care, and disposition of his property and affairs, as fully and absolutely as he has-now the management, care and disposition of them, and that this power should be understood and taken in its most comprehensive sense ’ Held, that the power was sufficient to authorise the attorney to waive notice and protest of notes endorsed by the principal.
    Where a note is payable at abank, a demand made of the president of the bank, is a sufficient demand.
    It is no objection to a notarial protest and certificate of notice, that the notary was himself the maker of the protested note. There is no conflict in such a case between the official duty of the notary and his personal interests, he being primarily liable as maker whether the endorser was discharged or not; and he acts against his interest in certifying his own default.
    Under the stat. of 13 March, 1827, the original protest and certificate of notice of the protest of a hill, or the duplicate original kept by the notary, are admissible in evidence, though the protest was not transcribed in any book, nor any record book was kept by him as required by the stat. of 14 February, 1821.
    Where a note held by a hank, payable at its office, was in the hands of the cashier at the time thatdemand’of payment was made-of him by the notary, it is no objection that it does not appear that tho notary himself had the note iu his possession when he presented it for payment. Aliicr, had the hank not been the holder, and the place of payment not at the bank.
    Notice of protest addressed to the endorser of anote at a village, the post office in which was nearest to bis residence, mentioning the parish and State, is a sufficient compliance with the stat. of 13 March, 1827, s. 2, requiring the notice to he addressed to the party, “ at his domicil or usual place of residence.”
    One who endorses a note, for the accommodation of the maker, whieh is afterwards discounted in bank and the proceeds applied for the benefit of the latter, cannot protect himself from liability in case of non-payment at maturity, on the ground of want of consideration. He had no right to have the proceeds of the note placed to liis credit.
    APPEAL from the District Court of St. Tammany, Jones, J. The plaintiffs appealed in this case from a judgment in favor of the defendant, who was sued as endorser of several promissory notes. The facts material to a correctunderstanding.-of this case, will be found in the opinion of the court, infra.

      Halsey, for the appellants.
    1. The Code does not exclude the blind from contracting. Art. 1775. It does not require an authentic act to give validity to their .contracts. A power of attorney may be given by private act. C. C. 2961. An act which is not authentic avails as a private act, if it be signed by the .parties. C. C. 2232.
    2. The introduction of the protests and .certificates of notice are objected to .on three grounds. First, that the notary who made the protests being the maker .and payer was incompetent to make a demand (because he could not pay and receive at one and the same time), nor make protest or giv.e notice. This reason might affect the demand, but it did not render the notary incompetent to give notice, nor does it affect the demand, as the notes being payable at a parti■ctilar place, no personal demand was necessary. 3 Kent, 97. 2 Peters, 543. 14 La. 327. 16 La. 276.
    The second objection is, that no regular record of.the protests and .certificates •of notice was made by the notary in a separate-book, in the presence of two witnesses, as required by the act of 1821. This record was unnecessary under the .act of 1827, which in this respect has repealed the act of 1821. B. and C. pp. 41, 43. The act of 1827 does not declare that protests and certificates of notice made under it must be recorded, either expressly or by implied reference to the .act of 1821. Under the act of 1821, the holder of the note was obliged to furnish the original declaration of the notary; hence it necessarily passed out of the notary’s hands. Under the act of1827 a certified copy of the protest and certificate •ot notice is received as evidence ; hence the notary retains the original. The re.cordof the declaration .under the act of 1821 was required, because the declaration itself passed into the hands of the holder of the note, to prevent falsification. But this reason for the record .coases .under the provision of the act of 1827, which makes the notary guardian of the original protest and certificate of notice. Ratione cessante, cessatet ipsa lex.

    The third objection is, that the address of the notices to the appellee, at Madisonville, parish of St. Tammany, was improper- — that the words “ at his domicil ,or usual place of residence” should have been added, is untenable.
    3. The testimony proves that the notes were discounted in renewal of other notes, held by the plaintiff against the maker, and that the appellee endorsed .them for this purpose.
    4. It is contended that the agent had not sufficient power to bind the appellee ,by his waivers of protest, &c., and that the power to execute such acts must he special.
    Admit that the effect of the waiver would be .such, and that the powe.r so .to bind the principal must be given specially, the requisite power is given in the act.
    The only question to be asked is, was the obligation by these waivers contracted in relation to the affairs entrusted to the agent. The attorney is.authorised to sign any obligation, contract or agreement whatsoever .in relation to his property, estate, affairs and business of every kind or nature whatsoever. This interpretation, giving the fullest effect to every expression of the act, is not only reasonable, hut is required by this further clause in .the act: “ This power shall be understood and taken in the most comprehensive sense.”

      A. Hennen, for the defendant.
    The power of attorney under which the waiver of protest, &c., was made, contains the most general and extensive powers. No general power can be more full ; yet, in it, nowhere is the express power given to waive protest and notice of promissory notes which the defendant had drawn and endorsed. The question then is, what is the extent of this power; and did it authorise the attorney to waive the protest and notice of the notes on which the defendant is sued as endorser ? If not, judgment must be .affirmed, as to those notes. It is evident that this power was not sufficient: 1st. To make a donation of slaves or real estate. “ Quelque étendue que soit une procuration générale, elle ne donne pas au procureur -le pouvoir de disposer par donation, d’aucune chose des biens dont on lui a donné la gestión.” Potliier, Mandat, no. 164.
    2d. Nor to given gratuitous discharge of any right, nor to discharge a mortgage. “ C’est une conséquence do .ce principe, que le procureur omnium bonorum n'a pas le pouvoir de iaire une remiso gratuite de quelque droit qui apparbiendrait aumandant; une telle remise, lorsqu’elle est gratuite, étant une véritable ■donation.
    “ C’est sur ce fondement que Ga'ius décide qu’un procureur omnium bohorum ne peutpas, s’il n’a un pouvoir spécial, donner un consentement valablepour la remise d’un droit d’hypothéque qui appartient au mandant: Videamus, si procurator omnium bonorum consonsit, an teneat consensus; et dicendmn est non posse, nisi hoc specialiter mandatum est.” Pandect, lib. 20, tit. 6, 1.7, § 7. Pothier, Mandat, no. 164.
    3d. Nor to make any contracts but those which, in good faith, the attorney believes to be useful to his principal; for he cannot l'avor the interests of third persons, nor his own. “Enfin, quelque étendue que le mandant ait donné ¡i sa procuration, le procureur n’ale pouvoir de faire d’autres contrats, que ceux par lesquels il croit, de bonne foi, faire utilement les affaires du mandant; et il n’est pas douteux qu’il excede les bornes de son pouvoir toutes les fois que, pour favoriser des tiers, et eu fraude des intéréts du mandant, il dispose des biens dout I’administration lui a été confiée. II n’est pas douteux aussi q’un procureur omnium, bonorum, quelque étendue que soit sa procuration, en excede les bornes lorsqu’il dispose, pour son intérét particulier, des biens dont on lui donné I’administration.” Pand. lib. 17, tir. 1, 1. GO, § 4. Pothier, Mandat, no. 166.
    Our Code, article 2966, requires an express and special power for the following, among other purposes : To encumber (that is, “ to load with debts.” Webster’s Diet. The french text says, “ engager,” i. e., “ mottre en gage, donner Pn gage; lier par quelque obligation; accumuler les dettes.” Dictionary of the French Academy); to accept or reject a succession ; to acknowledge a.debt; to .compromise or refer a matter to arbitration ; to make a transaction in matters of litigation; to make a judicial confession. Art. 2270. As none of these special powers are enumerated in this power of attorney, none of them can be exercised under it, lioweyer extensive and general the words used in it, and though it is “to be takenm the most comprehensive sense.”
    Our Code docs not pretend to give all the cases requiring a special power : it stales, however, that a general procuration or mandate “for all affairs,” which vests an indefinite power to do whatsoever may appear conducive to the interest of the principal,” and “ conceived in general terms,” “ confers only a power of administration.” Arts. 2963-2965.
    The old Civil Code, page 422, arts. 8 — 11, is in general accordance with the present Code; but enumerates another case not yet mentioned : “To sue for restitution in integrum with regard to an act,” as requiring a special power; because such an action implies a change of will. Dornat, part 1, liv. 1, tit. 15, sec. 3, no. 11.
    The articles of our Code are in fact taken from the Code Napoléon, arts. 1987— 1989, which, we are informed by Duranton, intended to put an end to the controversies among the doctors, on the extent of a general mandate, according to the roman law. 18 Duranton, 224, art. 228. See also, Pothier, Mandat, no. 145. It appears that Duaren, one of the earliest and ablest interpreters, Doneau, the rival and equal of Cujas and Vinnius, contended for the strict interpretation oi the mandate ; giving to the general power, however extensive and unlimited, only the power of administration, and requiring a special authority for every other act. Pothier considered the reasoning of Vinnius as plausible; but did not dare to decide against the common opiniou to the contrary, and left the decision to his readers, “ Jectoris erit judicium.” Pothier, Mandat, no. 145. The Spanish law, of which the old Code professed to be a digest, settles the controversy completely. The doctrine of tne Spanish authors was, that no procuration, however general, gave any other power than that of administration, and cut off the controversies which might arise under the Codes of Louisiana and that of France. “ En todos los poderes suelen insertar los escribanos los claúsuias siguientes: la. t¿ue el podorante confiere poder á su apoderado con libre, franca y general administración : 2a. Que se lo da para que, en su virtud, haga todo lo quo el haría y podría hacer por si mismo hallándose presente......Nada aprovechan en la practica, y solo se admite el poder en lo que terminantemente condene. Así dichas clausulas se ponen solo por mera costumbre.” 2 Tapio, 37ó, cap. 14, no. 14. “ Eu la prédica solo se admite el poder en lo que suena porque las dos clausulas se ponen por estilo, y por seguir la formula introducida.” 3 Febrero Adicionado, 223-4, part 1, cap. 14, no. 19.
    These authorities would settle this case fully, if it is tested by them; but it is contended that the jurisprudence of Louisiana is in opposition to them. Two cases are quoted in confirmation, Ilestres v. Petrovic, 1 Rob. 119. De Lizardi v. Pomerin, 4 Rob. 393. These casos give a rule of construction different from that for which 1 contend. Yet, if correct, they will not help the plaintiffs. The attorney held powers fiom persons who were residing out of the State; on the ground of absence and non-residence the reason of the decisions is based. But here, the principal and attorney both resided in the same parish, and both were present at the time. See also Story on Promissory Notes, § 309. These two cases are in direct opposition to two others of an earlier date. Montilletv. Duncan, XI Mart. 334. Louisiana State Bank v. Ellery, 4 Ib. N. S. 87. Jn the first, it is true, the principal was present, when the notice of protest was served on his attorney; but in the,last, the principal was residing out of the State, yet no reliance was placed on this absence. These cases show that here, as in Prance, “rien n’est plus variable que la jurisprudence de la Corn- de Cassation.” 3 Troplong, Privil. et Hypo. 79. This court must choose between the two sets of cases, and determine which is correct; they appear clearly irreconcilable.
    But these contradictory cases turned only on the power to receive the notice of the protest of a note. Here the question presented is, could the attorney waive the protest and notice ? There the attorney was passive. He received notice after protest. There is assuredly a difference between action and inaction. What is the amount of the waiver of a protest and notice of a note, which is to render the endorser liable for its payment 1 Is it anything short of the acknowledging of a debt? Without this waiver no debt is created ; the endorser’s liability is only conditional; without a protest and notice, he cannot be legally bound to pay the amount of the note which he has endorsed. It is only on the waiver, the debt is sought to be created ; on that alone it can be supported. See Marshallv. Overbray, X0 La. 161. Wallace v. Gwin, 15 La, 223. The Civil Code says (article 2966): “ The power must be express and special, to acknowledge a debt.” Without the acknowledgment made by the attorney, in waiving the protest and notice of the note, the defendant is entitled to judgment, because by it only he became a debtor; therefore his attorney acknowledged a debt, to do which he had no power. On this principle an attorney has not the authority to waive prescription which has accrued against a debt, or to make an acknowledgment of the debt. Durnford v, Clark, 3 La. 199.
    But what is it to waive ? “ To relinquish a right, claim, or privilege.” Webster’s Dictionary. This power was not given by the general words of the procuration, as already proved by the quotation above, from Pothier, Mandat, no. 164. The defendant had the right to require a protest ofthe notes, and notice. His attorney could not waive this right, without an express power. The privilege belonged to the defendant to claim an exemption from the payment of his endorsements, unless this waiver has precluded him. The whole current of decisions has been that the power must be special, to give the attorney the power to alienate, or do any act of ownership. Every such act which he may do, “ must be specified in the procuration.” The Code is positive, article 2965. None but the owner can relinquish or waive a claim, a right, a privilege.
    No such act of ownership was authorised by the defendant, and nonesuch could be exercised by his attorney : “ Diligenter fines mandati custodiendi sunt; nam qui excessit, aliud quid facere videtur.” Pandect, lib. 17, tit. 1, 1. 5.
    To the notes, which were protested by a notary public, there are objections equally fatal.
    1st. The owner of a promissory note who hands it over to a notary to demand payment, make protest, and give notice of non-payment to the indorsers, charges him with a mandate which must be governed by the general principles of the civil law.
    The notary who undertook this mandate, was the maker of the notes, of which payment was to be demanded. Any other person might have made the demand. Harrison v. Bowen, 16 La. 282. Follain v. Dujné, 11 Rob. 454. This mandate could not be performed by the maker of the note. The maker of a promissory note indorsed by the payee to a third person cannot make a presentation for payment and legal demand of himself, acting as a notary, so as to charge the endorser by notice. Such a presentation, demand and notice involves .an absurdity ; there can be no mandate to do an absurd or nugatoy tiling.
    “Ilfaut que ce soit une affaire qu’on puisse supposer pouvoir se faire parle mandataire. II est évident que pour qu’un mandat soit valable, l’affaire qui en «st la matiére doit étre une affaire qu’on puisse supposer pouvoir se faire par le mandataire; autrement le mandat est nugatonum et derisorivm mandatum, C(ui ne produit aueune obligation. Par exemple, si j’ai donné commission & mi docteur agrégé, qu’.un catarrhe sur la langue a privé entiérement de I’usage de la parole, do fair.e pour moi mes lefons aux écoles; q.uoiqu’il ait répondu par signes qu’il se chargeait de la .commission, un tel mandat est nul, et ne produit aucune obligation, nugatorium et d&risorium estmandatum, parceque 1’affaire qui en .est la matiére est une affaire qui est impossible, per rerum naturam, que le mandataire iasse.” Pothier, Mandat, no. 12.
    “ 11 faut encore, pour la validité du mandat, que l’affaire qui en est l’objet, soit telle qu’on puisse supposer que le mandataire peut la faire. Ainsi, dans le cas.oú un colonel aurait donné commission á un conseiller au parlemeut d’aller commander son régiment, et que ce conseiller eút accepté sa commission, le mandat n’en serait point rooins nul, parcequ’il s’agirait d’une .chose que le mandataire ne pourrait pas fail».” Merlin, Rép., verbo Mandat.
    “ L’achat de la pi opre chose du mandataire est une affaire qu’on ne peut, sans absurdité, supposer pouvoir se faire par le mandataire, étant impossible, per re-rum naturam, que quelqu’un adiéte sa propre chose; suce rei errvptio non valet. 11 est done évident que 1’achat do la chose du mandataire ne peut pas étre la matiére d’un contrat de mandat.” Pothier, Mandat, no. 14.
    “ Negotiumquod mandatur, tale esse debere ut in personam mandatarii cadere possit. Ex hac regula sequitur, non posse consistere mandatum emendas rei quie esset mandatarii propria.” Pothier, Pandect. Justinian, lib. 17, tit. 1, no. 10. “ Notarius non potest esse procurator in ea causa in qua officium suum prsestitit.” 6 Mulleri Promptuarium, 113, no. 18.
    These authorities show conclusively the incapacity of the notary to perforin the mandate with which he was charged; and if, in the nature of things, he could not make a demand of himself, there has been no legal protest, and the defendant is discharged of his indorsement. Union Bank v. Fonteneau, 12 Rob. 120.
    2d. Supposing that this demand could be made by the maker of the note, on himself; it should appear, from the protest, that the notary had the note in his possession, and then presented it for payment. This does not appear. “ The note itself must be ready for surrender, when the demand for payment is made; and in default of it, the demand will be insufficient to fix the endorser.” Fast-man v. Potter, 4 Vermont Rep. 313. Warren v. Briscoe, 12 La. Rep. 472.
    3d. And though the notéis payable at a particular place, it'is evident, if the maker is present at the place .when demand of payment is made, that it must be made of him personally, and not of another person. Here the maker was the notary himself, and if he could make the demand, the maker was the person nearest to him, and of him he should have made it. But the protest states positively, that demand was made of the cashier of the bank, but not of any other person. This was insufficient.
    If a notary goes with a note to the domicil of the maker, and finds him there, but does not present it to him and demand payment from him, but from the holder or owner who happened to be there at the same time, will it be contended that this was regular and sufficient to fix the indorser 1

    4th. The protest has not been made agreeably to the statute of 1821, which requires that “ the notary shall keep a separate book, in which he shall transcribe and record, by order of date, all protests, &c.” The evidence shows that all the protests of this parish judge were in a loose bundle, not transcribed in a book, and without any regard to order of date. The plaintiffs cannot avail themselves of these protests, to charge the defendant.
    5th. Furthermore, the notices were not given in accordance with the terms of the statute; for they were not “addressed to the endorser at his domicil, or usual place of residence.” Duncan v. Sparrow, 3 Rob. 164.
    6th. The defendant should have judgment on the plea of want of consideration.
    The notes were discounted by the plaintiff on the endorsement of the defendant, and the proceeds thereof regularly and legally belonged to him; and could not be placed to the credit of a third person without his consent, which nowhere appears,

      Halsey, in reply.
    1. In Fullcrtonv. Bank of United Stales, 1 Peters Rep. G15, (an action against an accommodation endorser, on anoto given in renewal of one which the defendant had endorsed,) the court said : “ \Vith his consent it might be applied to the satisfaction of another note for which he was endorser without his checking for the amount, and his consent may be implied from circumstances.” “In strictness the note renewed is not passed to the credit of th© drawer alono, for the endorser lias in effect a equal relief from the application of the proceeds.”
    It is contended that it should appear from the protest that the notary had the in his possession, and presented it for payment. But it is presumed that a notary does his duty, and hence that he has the note with him when he makes demand. Hart v. Taylor, 7 Rob. 32. Union Bank v. Penn, 7 Rob. 81. Union Bank v. Lee, 7 Rob. 75. 16 La. 311. 15 La. 375.
    2. No demand of the maker was necessary.
    The maker of a note, payable at a bank, must expect that demand will be made the cashier. It was his duty to offer payment without any demand. He in default by not offering, in 6 Mass, 525, the court said, “ if the holder at the bank on the prescribed day, ready to receive the money if the maker bo there, it is enough.” In Woodbndge v. Brigham, 12 M ass. 418, “ the contract the endorser was that the promiser should appear there at the day appointed for payment, and take up the note, if the proper officer of the bank should be there ready to receive the money. No demand of the promissor is necessary to charge the endorser, it being sufficient that the officers were ready to receive the money.
    Here the maker went to the holder for the purpose of protesting the notes. This undertaking on his part was, virtually, a declaration to the holder that lie would not pay. it will not be said, where the payer, on meeting the holder on the day and at the place of payment, tells him he will not pay, that a demand is necessary to put him in default. In 6 Wheaton, 171, the court said : “ If the note was there, it was a presentment; and if the maker had no funds in the bank, it was a refusal of payment, according to the legal acceptation of those terms, under such circumstances.” And “ the presumption is that a note payable ata bank will, if it is the property of the bank, be found there at its maturity.” Story on Notes, s. 243. 18 Pic. Rep. 63. 6 Mass. Rep. 524. 1 Wheat-on, 171. 1 H. Black’s Rep. 509. 6 Mass. Rep. 524. Fullerton et at. v. Bank of United States, 1 Peters’s Rep. 604, 606-. Bank of United States v. Carnead, 1 Peters’s Rep. 543. The court, in Allainv. Lazarus, 14 La. 337, expressly recognized the general rule, that demand must be made at the place of payment, but considered that case an exception to the rule. In the cases in 1 Rob. 327, 1 Rob. 311,14 La. 180, 10 La. 55-2, and 3 Mart. N. S, 423, where conformity to the general rule was held to be indispensable, the notes were not payable at the domicil of the holder. In Smith v. Robinson, 2 La. 405, the plaintiff failed to prove that the note was held at maturity, at its place of payment, the office of the owner’s agent. The only cases where the notes were payable at the holder’s domicil, are Attain v. Lazarus, 14 La. 331, and Murin v. Perot, 16 La. 276, and in these, as we have seen, the court considered the formal presentment and demand unnecessary. In Fullerton et al. v. Bank of United States, 1 Peters, 604, 606, the court said : “ Modern decisions go to establish, that it the note be at the place on the day it is payable, this throws the onus of proof of payment upon the defendant. This is more reasonable than to require of the plaintiff the proof of a negative, and comports better with the general law of contracts.” In Bank of United States v. Carnead, 2 Peters, 543: “If the bank has funds of the maker in its hands, that might furnish a defence to a suit, brought for non-payment. But this is properly matter of defence to be shown by the party sued, like any other payment, and not matter to be disproved by the bank by negative evidence.
    3. As to the sufficiency of the power of attorney, to authorise the agent tO' receive notices of protest:

      In Louisiana State Banhv. Ellery, 4 Mart. N. S. 87, the act of mandate aurised the agent “ to transact the following concernís in and with the Louisiana State Bank,” among others to endorse notes. Under this power, the agent had endorsed the note sued on. It was argued, that the power to endorse includes that of receiving notice. The court said, “ the power is a special one, and cannot be extended beyond what is expressed in it.” “ The power to receive notice, is not necessarily included in that of endorsing.”
    In Montilletv. Duncan, 5 Mart. 394, the plaintiff relied on an act of mandate and the testimony of his agent and others. The act appointed the agent “ to transact the following concerns in and with all the banks in New Orleans,” specifying them ; and concludes, “ binding myself to all the acts of my said attorney touching the premises.” The court said : “ The- power produced does not bob-fer on the attorney in fact, authority to receive notices,” In this case the mandate was special, it did not express a power to receive notice of protest, and, being special, it could not be extended beyond what was expressed in it.
    In the case of DeLizardiv.Pouverin, 4 Rob. 393,'andIlesiresv .Pelrovic, lRob. 119, the acts of mandate contained, besides a certain special power, a power of administration. The power to receive notice of protestwas not expressed. The court said, in DeLizardiv. Pouverin, “notice to an attorney in fact is, in our opinion, sufficient, although the procuration does not specially confer upon himlhe power to receive notices of protest, if it gives general powers to transact the business of the principal, he being abroad.” Judge Story gives the same rule :■ “ Notice to a known general agent will be equivalent to notice to his principal.” Story on Notes, ss. 307, 309. These authorities settle the rule, that the power to receive notice of protest can be given by a general mandate.
    4. But the defendant argues that he is not within the reason of these decisions. That they are based on the ground of absence of the principal. Absence is not the only circumstance which can enlarge the administration of a general agent. The defendant was blind. His blindness rendered the employment of an agent necessary. \nd his employment of an agent under this necessity, implied his intention to entrust the management of his business entirely to the agent. Pothiersays : “ Quand méme une procuration générale ne contiendrait aucune clause particuliére, je crois qu’elle peut, par les cireonstances, recevoir plus au moins d’étendue. Par exemple, lorsque celui qui adonné á quelqu’un une procuration générale pour gérer ses affaires, demeure sur le lieu ou dans un lieu peu éloigné de celui ouse fait la gestión de ses affaires, je pense qu’il est ordinairement présumé en ce cas n’avoir voulu comprendre dans sa procuration générale de ses affaires courantes et ordinaires; et que si, depuis sa procuration, ilsurvénait quelque affaire extraordinaire, qui n’eut pas été prévue lors de la procuration, cette affaire ne dovuit pas y étre facilement presumée comprise. Le procureur omnium bonorum étant en ce cas í\ portée d’en instruiré le mandant avant que de l’entreprendre, ne doit pas l’entreprendre sans l’avoir informé, et sans avoir récu de lui pour celaun pouvoir spécial.” Mandat, see. 147. What the general power of attorney cannot include, when the principal is at hand, must be something extraordinary. The defendant knew that the maker of these notes was insolvent, and must have expected that at their maturity he would either be called on to renewhis endorsements, or see the notes protested.Hence, under the rule given by Pothier, this mandate included the management of whatever the defendant’s interest might require at the maturity of these notes.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought on several promissory notes, drawn by Briggs and endorsed by the defendant. All these notes stipulated interest from) maturity, at the rate of seven per cent per annum. They were all payable at the office of the bank at Covington. All these notes are proved to have been discounted by the bank for the benefit of the maker, the endorser having endorsed-for his accommodation. It is also proved that Briggs was insolvent at the maturity of the notes. The endorser was blind at the time of endorsing these notes and of the execution of certain other instruments, which will be noticed hereafter ; but the genuineness of all his signatures is incontestrbly proved, and there is no evidence in the record to show that any fraud has been practiced upon him in obtaining the signatures. Morgan had been for many years, and before he became blind, an accommodation endorser for Briggs, and the notes sued upon-were renewals of previous notes, upon which Morgan was qndorser. Various points have been presented by the counsel for the defendant, which we- proceed^ to notice.

Upon three of the notes, on the respective days of their maturity, there-was endorsed an agreement, by which the endorser declared that he waived' the formality of protest, and held himself bound as though the note had been-legally protested and he duly notified. One of these agreements further states expressly, that he waives the formality of notice. The legal effect of all these agreements is the same, and if binding a.t all, place the endorser in the same position as if formal protest had been duly made, and due notice given. These agreements, however, were not signed by Morgan, but by his son John Joseph Morgan, as attorney of the defendant; and two questions are here presented is the execution of the power of attorney proved, and, if so, did the instrument creating the agency authorise the attorney to sign such agreements ?

The power of attorney was executed before a notary public and two witnesses, and on its face purports to be an authentic act. But its admissibility, as an authentic act, was destroyed by the plaintiffs’ acknowledgment that, at the date of the act, Morgan w as blind. The court properly refused to admit it in evidence as an authentic act, under article 2231, which declares that “the authentic act, as relates to contracts, is that which has been executed before a notary public, or other officer authorised to execute such functions, in presence of two witnesses, free, male, and aged a least fourteen yoars, or of three witnesses, if the party he hlincl.” Upon this refusal of the court, the original act was produced, the signature of Morgan was proved by one of the subscribing witnesses, and it was then received in evidence, the defendant excepting, “ that if it could not be received as an authentic act, for the want of a sufficient number of witnesses, a fortiori it could not be received as a piivate act.” The court did not err. The blind are not declared by our law incapable of contracting,

■“ All persons have the capacity of contracting, except those whose incapacity is specially declared by law. These are persons of insane mind, slaves, those who are interdicted, minors, married women.” Civil Code, art. 1775. Article 2231 is expressly affirmative of the capacity of the blind to contract. The requisition of three witnesses touches ouly the authenticity of the instrument — - its competency as proofed- sc. The article of the Code immediately following declares : “ That an act which is not authentic through the incompetence or the incapacity of the officer, or through a defect of form, avails as a private writing, if it be signed by the parties.” Here the act was signed by the party; his signature is incontestibly established by the subscribing witness; and there is no proof, and not even a suggestion, of fraud or mistake. It must also be observed that the execution of the power cannot be considered as resting upon the testimony of a single witness. Various circumstances established by the evidence in this cause corroborate the proof of execution ; and not the least of these is the action of his own son, as the father’s attorney. To disbelieve the execution of the instrument would involve, as a necessary consequence, that the son had attempted the commission of a fraud upon his father. We can hardly suppose that counsel, had they viewed the matter in this light, would have presented an argument which, if sustained, would save the parent by the dishonor of his child.

Considering the execution of the power of attorney as duly established, what is its legal effect? Did it authorise the son to sign the agreement of waiver above stated? The power is very full and comprehensive. After conferring tho usual authority to collect debts,to give acquittances, to compound,compromise, &c., it contains these words : “ Also for him and in his name to sign any bond, obligation, contract, or agreement, or other paper whatsoever; to draw and endorse promissory notes, to draw and accept bills of exchange.” Then' follows an authorisation to buy and sell all kinds of properly, “and also, for him and in his Maine, lo do all such oLher acts, matters and things, in relation Lo his property, estate, affairs, and business of every kind or nature whatsoever, as he might or could do, if personally present and acting therein; it being his intention to commit to the said John Joseph Morgan the entire management, care and disposition of his property and affairs, as fully and absolutely as he has now the management, care, and disposition of them, and that (his power shorild be understood and taken in its most comprehensive sensed’ We are of opinion that this power fully authorised the agreements in question. The authority to sign any bond, obligation, or agreement'whatsoever, standing1 side by side with the authority to make even a new note, and fortified by the broad declaration that the whole power should be understood in its most comprehensive sense, comprehends, if language has any force, the agreement of waiver made with regard to notes already executed by the party himself; and any other interpretation would make such powers of attorney, instruments of deception. It cannot be said that, in the present case, there was even an indiscreet exercise of the power of the-agent. Briggs was insolvent, and the waiver of the formality of protest and notice was a saving of expense to the pi-incipal.-

Á portion of the notes sued upon were protested, and notices were given by Lyman Briggs, parish judge and ex officio notary for the parish of St. Tammany ; and the protest and- certificates of notice, signed by Briggs, in his official capacity, being offered in evidence, they were objected to, as appears by the bill of exceptions, on the ground that Briggs was incapable ofso doing, because he was the maker of the notes and could not pay and receive at one and the same time; and was, also incapable of giving notice: So far as the question of presentment is concerned, the bill of exceptions and the argument of the learned counsel upon it, are based uopn the erroneous assumption that a presentment to Briggs personally was necessary ; and, these premises being assumed, it is contended that Briggs could not make a demand' of himself, and that the mandate to do so was a vain and void mandate-. When a note is made payable at a bank, it is a good-demand if made upon the cashier of the bank, as was done i»> this instance.

In support of the general position of the incapacity of a public notary to certify his own personal default, the learned counsel has exhibited no textual provision of law, and the analogy in a case in which the Code has .expressly treated of the subject is against him. Even in the graver duties of the judiciary, a judge is not incapacitated by his personal connection with the cause. If he be interested in the cause, he may be recused, or may recuse himself; but the law does-not absolutely incapacitate him. The public officer and the1 individual are not identical. There-wae, in this case, no conflict of the official duty of the notary with his private interest; for whether the endorser was discharged, or held outlie note, was immaterial to him as maker and primarily liable. As to Briggs himself, he was acting against his own interest in recording his own default.

Another ground of exception to the admissibility of the protest and certificates of notice waa, “that there was no regular record of the protests and notices, made in a separate book, and recorded in the presence of two witnesses by said notary, as is required by the statute of 1821.” It appears by the bill of exceptions, “that the parish judge was called upon to produce the book of protests, and thereupon brought into court a large bundle, amongst which were three sheets containing exact duplicates of the three offered in evidence ; these were loose sheets, not arranged in the order of their dates, but some that purported to be protests of the year 1842, were placed in the bundle after others that were dated in the year 1844; the whole tied in bundles, and placed between two pasteboards, which had the appearance of the binding of a book.”

The act of 1827 does not require the keeping of a separate book for transcription and record; and under it the original protest and certificate of notice given to the bank, or the duplicate original kept by the notary, was competent evidence.

It is objected that it does not appear from the protest of the notary, that he had the note in his possession when he demanded payment. It is manifest, not only from the evidence of the cashier but from the protest, that the notes were held by the bank at maturity. The notary declares in each protest that he went to the bank on the-day of maturity, at the cashier’s request; and he declares that the cashier was the holder .of the note, ,of which the copy annexed to the protest -is a true copy. These declarations show -that the note was in the hands of the cashier at the time, and -that the notary must have taken a copy of it, and-we are at alossto see the difference'between the-cashier’s showing the note to the notary and asking him to protest it, and putting the note formally into the manual possession of the notary before he made the demand. If the bank had not been the holder, and the place of payment -had not ;been at the bank itself, the objection would have been material.

The notices were mailed at Covington, in the parish of St. Tammany, addressed to the endorser, at Madisonville, parish of St. Tammany, La. Morgan lived about two miles from Madisonville. It was the post office nearest to his residence, and the -notice was properly thus mailed and addressed.

Morgan had no right to have the proceeds of the notes when discounted passed to his credit, it being shown that he was the accommodation endorser for Briggs, to take up whose protested paper, endorsed by Morgan, the notes were discounted.

It is therefore decreed-that the judgment of the court below be reversed.; and it is decreed that .the plaintiffs recover of the defendant David B. Morgan, the sums following, and interest thereon, at the rate of seven per centum per .annum, from the respective dates hereinafter mentioned, until paid, to wit: -the sum of $600, with interest at said rate thereon from the 21st day of June, 1842 ; the further sum of $220, withinterest at said rate thereon, from the 27th day of June, 1842; the further sum of $1,450, with interest at said rate thereon, from the 30th day of July, 1842; the further sum of $450, with interest at said rate thereon, from the 15th day of August, 1842; the further sum of $140, with interest at said rate thereon, from the 22d day of August, 1842; the further sum ■of $380, with interest at said rate thereon, from the 19th day of October, 1842; .and the further sum of $460, with interest thereon at said rate, from the 29th day of October, 1842; and costs in both courts.

       Eustis, C. J., did not sit in this case, being interested.


author: Eustis, C. J.'

text:
    Saulet v. Trepagnier et al.
    Where a defendant dies pending a suspensive appeal taken by him from a judgment in favor of plaintiff for a community debt, and his widow is appointed administratrix of bis succession and accepts the community,bat is not made a party to the appeal except as tutrix ofher minor children, and the judgment below is affirmed in general terms without any reference to the parties, the judgment will be binding oniy on the minors, and have no effect against the community represented by the administratrix, nor against her personally; and the surety having signed iho appeal bond when there was a judgment against the original defendant, bindingon the community, the failure of the creditor, oil the death of the principal dobtor, to make the proper parties, so as to maintain the judgment in its integrity, and to .enable him to subrogate the. surety to all his rights under it, will destroy his recourse against the surety pro tanto. Nor will it make any difference in such a case that an execution on the judgment so affirmed, was afterwards issued against the widow, with her consent, for the balance remaining due after exhausting the property of the heirs, and that all that could then be made out of her property was received under it, where there is no evidence affording any ground for believing that any part of the debt would have been lost, had the original judgment been maintained on the appeal against the community. Per Curiam.: The execution issued against the widow without any judgment against her, must be considered as illegally issued; and the surety is only bound by legal proceedings against the debtor.
    Asurely is" entitled to the benefit of all the securities in the hands of the creditor; and if any of them bo lost by his wilful neglect or want of due diligence, the surety is, to that exten t, discharged.
    Art. 3.030 of the Civil Code which declares that “the surety is discharged, when, by the act of the creditor, subrogation to his rights, mortgages and privileges,can no longer be operated in favor of the surety,” must be understood as comprehending under the word act the omissions or neglects of the creditor.
    Appeal from the District Court of the First District, Buchanan, J.

      Buisson nud Boselius, for the plaintiff,
    cited C. C. art. 3035, et sec/. Alley v, Hawthorn, 1 Ann. R. 122.

      Josephs, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.'

This case was before the Supreme Court, ip June, 1845, and is reported in 11 Robinson, 2C7. The suit is against the widow and heirs of the late Francois Trepagmer, who had been surety on an appeal bond for the late Pierre Trepagnier, against whom the plaintiff recovered judgment for $15,000, with interest, which judgment was affirmed in the Supreme Court, in June, 1843. 2 Rob. p. 358. Pending the appeal Pierre Trepagnier died, leaving a widow in community and several children, some of whom were minors. The widow was appointed administratrix of his succession and accepted the community, but was never made a party to the appeal, except as the tutrix of her minor children, who were made parties by an order of the Supreme Court. There was an appearance by counsel, and the judgment appealed from was affirmed in general terms, without any reference to the parties.

The proceedings antecedent to this appeal afe stated in the report of the case jn 11 Rob. 267. It was then determined that the present plaintiff had no recourse against the defendants, until such proceedings were taken against the widow in community and the property of the succession of her husband in her hands, as the condition of the appeal bond required. The plaintiff in this case had judgment for $2,881 40, with legal interest, being for the balance due on the original judgment against Pierre Trepagnier, and the defendants have appealed.

It appears that, on an execution issued on the original judgment, in 1842, against the heirs of Pierre Trepagnier, the sum of $8,517 88 was made; that, hi 1845, uy an order of the District Court in which the judgment was rendered an execution was issued against the widow in community, on which the sum of $5,646 48 was made. This ¡'sail that can be made against the parties by execution.

The principal ground of defence is, that the sureties to tho appeal bond are released by the omission of the plaintiff to make the widow of the original deb. tor, Pierre Trapignier, a party to the suit then pending on the appeal. She had accepted the community, and became liable for one half of the debts. The heirs were made parties, and became bound by the judgment; but it does not appear that any proceedings were taken to make her a party to the appeal, except ihher representative capacity of tutrix to her children.

It is apparent, by the opinion delivered by the court on the appeal, that she was not a party, and that she ought to have been, in order to render the judgment operative against her as such. It follows, of course, that, so far as the sureties are concerned, the execution issued against her without any judgment being rendered against her, must be considered as illegally issued. How far her consent to the issuing of this writ may be implied, it is not necessary to consider, for the surety is only bound by legal proceedings against the debtor, and not by the equities between him and the creditor.

It remains to consider the law applicable to this state oí facts. The condition of the appeal bond is, “ that the above bound Pierre Trepagnier shall prosecute his said appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of his estate, real and personal, if he be cast in the appeal; otherwise that the said Francois Trepagnier, his surety, shall be liable in his place.”

Pierre Trepagnier left an estate worth, by the inventory under which his widow .accepted the community, $87,971 50. His debts amounted to $54,000. He died in 1838. The debt on which the judgment was rendered was a community debt, originating in a sale of a plantation and slaves from the plaintiff to the deceased, as far back as 1829. Thus it appears that by the neglect to make proper parties on the appeal, there is no judgment against the community represented by the administratrix, nor against her personally. The judgment appealed from was affirmed without any reference to either.

It would seem tobe a necessary consequence of the principles of the law of suretyship, that the surety is entitled to the benefit of all the securities in the hands of the creditor; and, if any of them be lost by his willful neglect or want of due diligence, the surety is to that extent discharged. Pitman on Principal and Surety, 204. Theobald on Princ. and Surety, § 176, and cases cited. Law Library, vol. 30, p. 138. By article 3030 of the Code the surety is discharged, when, by the act of the creditor, the subrogation to his rights, mortgages and privileges, can no longer be operated in favor of the surety. Article 2037 of the Napoleon Code is to the same effect: and the Court of Cassation has more than once decided that, the term act of the creditor applied to omissions, or neglects of the creditor, and consisted in omitiendo ns well as in committcndo. Case of Galy, Sirey’s Reports, 30, 2, 89. Case of Adema, Ib. 26, 2, 57. Also, case of Dumesnil Dubuisson, Ib. 28, 2, 121. Our own jurisprudence we consider well settled on this subject. McDonogh v. Relf et al. 19 La. 143. When the surety on the appeal bond in this case signed it, there was a judgment against Pierre Trepagnier, and the community existing between him and his wife was bound by it. The judgment rendered on the appeal, though it affirmed the judgment of the court, only bound those who were parties, to wit, the heirs of Pierre Trepagnier. There is to this day no judgment against the community. The creditor was bound to make the proper parties on the demise of the principal debtor, so as to maintain the judgment in its integrity. If, by his neglect, it bag been impaired, so that a subrogation to 'the rights under the original jul^Smeat’s impossible, his recourse against the surety, pro tanto,is lost. There is no evidence before us which affords any ground for believing that any part of the debt would have been lost, had the original judgment been maintained on the appeal against the community, as well as against the heirs of Pierre Trepagnier.

We have assumed throughout that the wife was not a party to the suit, by the appearance of the husband. He, as the head and administrator of the community, was the defendant in the suit, and through him alone was the community in court. On his demise the community ceased to be represented, and no proceedings could be taken against it binding on the surety, without its being regularly represented by the proper party. We have been furnished with no adjudicated cases on this point of practice ; but, on general principles, though the community is bound by the judgment rendered against the husband in his life time, yet we see no reason which should exempt a case of this kind from the operation of the universal rule, which confines the effect of judgments, as such, to those who are parties to the record. The' disabilities under which women are placed by our laws, and the necessity imposed on them of entrusting their business to others in most cases, give them strong claims to the benefit of any general rule, which is established for the protection of parties against mistake, surprize or injustice.

The judgment appealed from is therefore reversed; and judgment is rendered for the defendant, with costs in both courts.

      Rost, .7. <li(l not. sit in this case, having boon of counsel.

        Roselius, for a re-hearing, 1. When an appellant dies during the pendency of the appeal, it is the duty of his heirs or legal representatives to make themselves parties, or, in other words,to prosecute the appeal, or the bond will bo forfeited. Art. 579 of the Code of Practice, provides, •“ that in the appeal bond, it must be set forth in substance, that it is given as surety that the appellant shall prosecute his appeal, aud that he shall satisfy whatever judgmont may he rendered against him,” &c. One of the main conditions of the bond, which both the principal and his surety subscribed, was that the former shall prosecute the appeal. This obligation is as binding upon the heirs and widow in community of the appellant, in case of his death, as on himself. The rule in the Supreme Court of the United States is, that the appeal will be dismissed unless the legal representatives of the appellant present themselves within a given period to prosecute the appeal.
      2. It is admitted that a judgment rendered against the husband, dining the existence of the community, is binding on his surviving widow on his death,if she accepts the community. If this be true, the judgment rendered in this case by the District Court, is binding on the widow of Pierre Trepagnier. The appeal taken by the husband did not annul the judgment, nor did it extinguish the debt. Rehearing refused.