Rasch v. Johns & Co. , 14 La. 46 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

The plaintiff sues, the defendants on a promissory note. The defendants resist the payment, oh the ground that under the circumstances in which the plaintiff received the note, the defendants have a right to plead certain matters in eom-pensalion, which they could plead against Nicolet & Co., from whom the plaintiff received the note.

Where a note is in possession of the payee at his death, although inclosed by him, with directions to his executors to hand it over to a creditor after-wards, it will be considered as still belonging of right to his succession. The makers of a note may plead in compensation against the en-dorsee or holder, any demand or claim which they had against the payee at the time of its transfer.

It appears that the note was not delivered to the plaintiff, until several days after the decease of Theodore Nicolet; he received it from the hands of his executor, Mr. Blanchard, in the letter directed to him by its unfortunate writer.

The note being in the possession of the deceased at the time of his death, belonged of right to his succession. There was no act in behalf of the deceased or of the plaintiff, which divested the former of the property in the note.

The effect of the letter as a disposition, causa mortis, we cannot consider, until the judgment of the Court of Probates has been passed upon it.

As the defendants have made out a complete defence to the note, supposing it to belong of right to the succession of Nicolet, we think that the compensation pleaded by the defendant, was properly allowed by the District Court.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.