Fort v. Cortes

delivered the opinion of the court.

The defendants are sued as security of William Harkins, the drawer of a promissory note in the words and figures following, to wit:

“Natchitoches, April 15th, 1836.

“ On the first of October next, I promise to pay to the order of Mr. William Fort, four thousand eight hundred and sixty-two dollars, for value received, payable at the counting house of Messrs. Robbins & Painter, of New-York.

(Signed) “ William Hareins.

(Signed) “ Cortes & Laplace,

“ Security.”

. The judgment below was in favor of the plaintiff, and the defendants, Cortes & Laplace, after an unsuccessful attempt to obtain a new trial, have taken this appeal.

It is admitted that no demand has been made at the place appointed for payment in the body of the obligation. The plaintiff, to supply the want of such demand, has endeavored to prove that the maker, Harkins, had provided no funds at that place, by putting interrogatories to the defendants. They *183have been asked whether, at the maturity of the note sued on, they had sufficient funds in the house of Robbins & Painter, of New-York, to pay the note. They made no answer; and, allowing the plaintiff the full benefit of the presumed confession that defendants had no funds to meet the payment in New-York, it will in no way help him, for it was incumbent- on the drawer of the note, not on them, to provide the necessary funds; and nothing in the record establishes any failure or neglect of the drawer so to do. A witness was also produced to establish that payment was often demanded of the defendants, and that they never objected to the demand being made here. The same remark applies to this testimony: if a demand made here, without ... , , , . „ . . , . , objection, could produce any waiver of the maker’s rights, it must be a demand on him, not one made on the defendants, Throughout these proceedings, the latter appear to have been considered as principal obligors, while they are only the sureties of Harkins; and, as such, they can oppose to the plaintiff all the exceptions belonging to the principal debtor, and which are inherent to the debt. Louisiana Code, article 3029. If the plaintiff is without right of recovery against Harkins, for want of a demand at .the place appointed for payment, of which we entertain no doubt, he can have none, against the defendants. Mellon vs. Croghan. 3 Martin, N. S., 423.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that there be judgment against plaintiff as in case of non-suit, the plaintiff and appellee paying costs in both courts.