The other defendants pleaded a general denial, and averred Western Dist. they had not been served with duly authenticated copies of October, 1840. process, &c.

The mortgage is in the usual form. Glasscock says that he has transferred said note to the plaintiff as tutor, and to secure the punctual payment, he mortgages and hypothecates the property named in the act of mortgage.

There was judgment against Glasscock, the endorser, for the sum claimed, and that the mortgaged property be seized and sold to pay the judgment, and he appealed.

Ogden and Poindexter, for the plaintiff, urged the affirmance of judgment. The act of mortgage clearly bound the defendant, absolutely, to pay the debt. It takes the case out of the mercantile law.

Stacy, for defendant and appellant, insisted that the note was in negotiable or mercantile form, payable to the order of and endorsed by the defendant. Has he ever assumed any other capacity or obligation? The execution of the mortgage was a voluntary act on the part of Glasscock. It does not seem to have been exacted by the plaintiff. The allegations of the petition are that defendant is liable, because he endorsed the note, and because he gave a mortgage to secure payment.

2. The mortgage is an accessory to a principal obligation; and at the time of executing it, the obligation of Glasscock, on the note, was simply that of endorser. Did he change that in the act, or contract an absolute obligation to pay the note? The language used by him is, "whereas certain persons had executed the note payable to his order, and whereas he had endorsed said note, &c.," showing that he appeared before the notary, acted and bound himself as endorser only, by an accessory obligation: no principal debt was contracted in the act, but the execution of his original contract secured. Suppose the mortgage had been passed at the date of the note? See 12 Louisiana Reports, 386.

HOOVER, TUTOR

&c.

V8. GLASSCOCK.

WESTERN Dist. 3. The rules for the interpretation of agreements, show that October, 1840. Glasscock only bound himself as endorser. Louisiana Code,

HOOVER, TUTOR

&c.

vs.

GLASSCOCK.

1947, 1950, 1943, 1944.

4. The plaintiff has interpreted the contract himself, and sought to hold the defendant liable, as endorser. Idem., 1951; 6 Louisiana Reports, 745; 9 Idem., 335.

Morphy, J., delivered the opinion of the court.

The petition sets forth that Benjamin F. Glasscock, having made over and transferred to the plaintiff, in his capacity of tutor of certain minors, a note of hand drawn to his order, the said Benjamin F. Glasscock, in order more effectually to secure the full and punctual payment of said note at its maturity, executed a mortgage for its amount on certain slaves, in favor of the plaintiff in his said capacity; that when due the note was presented for payment to the drawers and the said transferor and mortgagor, who refused to pay it. The petition concludes with a prayer for judgment, and for the seizure and sale of the property mortgaged to satisfy the same. The defendant pleaded the general issue. There was judgment for the plaintiff, and the defendant appealed.

It is contended, on the part of the appellant, that his principal obligation resulted from his endorsement on the note in suit; that having been released and discharged therefrom by the laches of the plaintiff, who gave him no notice of protest, the mortgage, which was only an accessory, must be without effect; that he contracted no absolute obligation to pay the note, and that the mortgage was intended only to secure his endorsement on it, in case he became liable.

This case must turn upon a proper construction of the deed of mortgage executed by B. F. Glasscock; for it is clear that under the rules of the commercial law he cannot be made liable; the necessary steps, to fix his responsibility as endorser, not having been taken. Upon an attentive examination of this instrument, we have come to the conclusion, that the terms used in it clearly indicate that Glasscock intended, absolutely, to secure the payment of

October, 1840.

LOTT & IVES

vs. PARHAM.

Where the en

dorser of a note,

this debt, and that the mention made of his endorsement WESTERN DIST. was to show the transfer of the note to the plaintiff. The latter, who as tutor of minors was bound by law to invest their funds only on mortgage, probably required of defendant this kind of security. Had the defendant intended to give this mortgage only to secure his conditional obligation as endorser, he ought clearly to have so expressed it. gage and emWhatever may have been his intention, the deed must speak ployed for itself, and the words used by the defendant clearly con- of mortgage as vey the idea that he absolutely undertook to pay the debt, and that the mortgage was given to secure its punctual discharge. Verba fortius accipiuntur, contra proferentem.

executed a mort

such

terms in the act

show that he in

tended absoluteto secure the

ly

payment of the debt, he will be liable, without any of the neces

It is, therefore, ordered, that the judgment under review be sary steps to fix affirmed, with costs.

his responsibility as endorser.

LOTT & IVES US. PARHAM.

APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF RA-
PIDES, JUDGE KING OF THE FIFTH DISTRICT PRESIDING.

Where a note was given by one partner for an ordinary partnership debt, in the name of the firm, and it is shown the defendant purchased out his copartners, and agreed to pay all the plantation debts, he cannot resist payment, on the ground that one partner had no authority to subscribe the note sued on, in the name of the firm.

This is an action on a promissory note, signed "Ives, Henry & Parham, by J. C. Henry," for two hundred and fifty dollars, and also, an account annexed, against Parham, for sixty dollars and fifty cents.

The defendant denied his liability to pay the note, averring, that Henry had no authority to sign his name, and also denies, that this debt is included in an agreement he came under to pay the plantation debts.

WESTERN DIST.

LOTT & IVES

It appears that Ives, Henry & Parham, had formed a partOctober, 1840. nership, to carry on and conduct a cotton plantation, and in the course of their business, the note sued on was given, and the account raised with Lott and Ives, the present plaintiffs. After this, Ives & Henry sold out by public act, all their interest in the plantation to Parham and wife, who agreed in the act, to "pay all the plantation debts." The claim of the plaintiffs was shown to be a debt of this class.

PARHAM.

There was judginent for the plaintiffs, and the defendant appealed.

Ogden, for the plaintiffs and appellees.

Brent, for the defendant.

Morphy J., delivered the opinion of the court.

The plaintiffs claim on a note and open account, which were due by Ives, Henry & Parham, as joint owners of a plantation, but the payment of which was assumed by the latter, in a sale made to him by his partners of the property held in common. The defendant denies his liability for the note sued on, averring, that he never authorized Henry, who signed it in the name of the partnership, to bind him for any purpose whatever. He also denies, that this note is included among the debts he assumed to pay. The plaintiffs had a judginent below, from which defendant prosecutes this appeal.

On examining the sale made to defendant by his co-proprietors, we find that the plaintiffs claim is expressly included, and mentioned among the plantation debts which defendant undertook to discharge. We cannot consider the defence. made below as serious, nor can we view this appeal in any other light than as one taken for delay. The damages prayed for by the appellees must be awarded to them.

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

LYNCH ET AL VS. BREWER.

WESTERN Dist.

October, 1840.

APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF
RAPIDES, JUDGE KING OF THE FIFTH PRESIDING.

LYNCH ET AL

vs. BREWER.

Appeal dismissed for want of proper parties.

This is a suit instituted by H. Erskine, Hugh Lynch, H. Robertson, and the legal representatives of Robert B. Menniss, deceased, heretofore trading under the firm of Menniss, Lynch & Co., against the defendant on his promissory note.

The defendant excepted to the petition, on the ground that one of the representatives of Menniss was a minor. The exceptions were overruled, and there was judgment for the plaintiffs, from which the defendant appealed.

Both the appeal and appeal bond, were taken against Hugh Lynch & Co.

Elgee, for the plaintiff, moved to dismiss the appeal for want of a proper appeal bond, or one given to the proper persons as appellees.

No counsel appeared for the defendant.

Martin, J., delivered the opinion of the court.

The plaintiffs state that, heretofore, they were in partnership, under the firm of Menniss, Lynch & Co., and that the defendant became indebted to them. They had judgment accordingly, and the defendant prayed for and obtained an appeal from a judgment which he alleges was obtained against him by Hugh Lynch & Co., and gave bond to that firm. The citation issued to Hugh Lynch & Co., and the record of the suit in which the plaintiffs had judgment was brought up. They have prayed for a dismissal of the appeal, on the ground that there was in fact none taken against them, no bond having been given, or citation issued to them.

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