Thatcher v. Goff , 13 La. 360 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The former judgment of the District Court in this case, was reversed on appeal, and a new trial ordered at the May term, 1837. See 11 Louisiana Reports, 95.

On the return of the case to the inferior court, a rule taken on the plaintiff to show cause why the attachment should not be set aside, on account of the insufficiency of the bond, was discharged. There was judgment for the plaintiff against the defendants, and the petition of the intervening party was dismissed. The defendants and intervenors appealed.

I. The rule to show cause was granted, on the allegation that the attachment informally issued; there being no bond with security given, according to law.

Where a com-mercml nrm signs an atia-h-sm-ety, 'the bond is not thereby ■vitiated, although the part-be'loumi? for the partner who name of the firm bound.S C'SeS tion of tbe go-the'great seal''of the state, is the a justice of the nexuohis commission, and where proof of his signature is ís'atlmíttedf'the governor’s oerti-ficate, although not annexed to cornmissionf ''is full evidence, of his official capacity.

2. That if anjr such bond was ever given, it is of no avail, inasmuch as the Jinn represented as the surety therein, has been protested and has stopped payment. 1 ‘ 1 1 J

, . The informality in taking the bond complained of, is, that ^subscribed by a commercial firm, as surety for issuing the attachment. We are not ready to say that this vitiates the - J bond. The partner who subscribes the name of the firm, is 111 all cases bound. It is, therefore, useless to examine whether the firm itself is, or is not bound, when' the bond is given for the affairs of the partnership, or with the consent of all the partners, which must be presumed until it be denied.

In relation to the second ground assumed in the rule, there is no evidence of the alleged insolvency or insufficiency of the surety, given in the bond. The rule was, therefore, properly discharged.

II. Our attention is next drawn to two bills of exception. The first is to the admission of a deposition, on the ground that the official capacity of the officer who received it was not shown.

The commission was directed to any justice of the peace of the county of Hinds, in the state of Mississippi. The return is signed by a person who calls himself Calvin Miller, a justice of the peace for said county. A certificate of the governor of the state, attests, that Calvin Miller was a jus-^*ce Peace ^01' the sa'd county, at the date of the return to the commission. This certificate is on a separate sheet of paper, which comes up with the record, but does not aPPear t0 have ever been annexed to the return of the commission.

T . . . 1 , . . It does not appear to us that the deposition was improperly admitted. The only objection to it was, the want of proof of the official capacity of the commissioner. The attestation 1 , , of the governor, under the great seal of the state, was the next best, evidence to the justice’s commission, which cannot be expected to be sent to this state, with the return to the . . . . . . commission for taking the deposition. The signature of the justice does not appear to have been proven, but we must presume that proof of it was not required, or that it was admitted, since no objection was made on that score. We are not to look for objections out of the bill of exception.

Where certain notes, payable at the branch of the United States bank at Natchez, are protested by anotary residing in Nachez, who states in his protest that he demanded payment at the United States Bank, it will be considered as meaning- the branch at Natchez, and not the principal bank at Philadelphia.

III. The second bill of exception which it becomes necessary to notice, is taken to the admission of a document in evidence, purporting to be the note sued on, which was'made payable at the office of the Branch Bank of the United States at Natchez; and another instrument of writing, purporting to be the notarial protest of the note, showing that a demand of payment had been made at another and a different place, to wit, at the United States Bank. These documents were properly received in evidence. Their admission did not prevent the appellants from showing that the demand was not made at the proper place, even admitting this to be the case.

IV. On the merits, the handwriting of the makers and endorsers of the note was fully proven. The notes were made payable at the office of the Branch Bank of the United States at Natchez. It is, however, contended, that the demand was not made there, but, as appears from the protest itself, at the United States Bank, by a notary public residing at Natchez, there commissioned and sworn; and the protest is dated on the day upon which the call was made at the bank, at the notary’s office in the city of Natchez. The court correctly concluded, that the words United States Bank, meant the office of the branch of that bank at Natchez, and not the office of the Bank of the United States, which was by law located in the city of Philadelphia.

Judgment was, therefore, correctly given against the defendants ; they having pleaded the general issue only, and full proof of their signing and endorsing the notes sued on, having been administered.

It is true that the defendant, Goff, filed a separate and supplemental answer, denying that the plaintiff is owner of the notes, and averring that he is not in court, either by his person or his property ; and, also, that he has already been sued in the state of Mississippi.

The conclusion to which we have come, establishes that the properly attached was that of the defendants. Neither of the averments in the supplemental answer is supported by evidence.

The petition of the intervening party was correctly dismissed, as thev did not administer any proof of property in , , , , the goods attached.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.