WESTERN DIST. The appellant does not appear in this court. It would be October, 1840. difficult to find any reason for sustaining the appeal. MAHLE vs. TERRY. It is, therefore, ordered and decreed, that it be dismissed, with costs. MAHLE VS. TERRY. APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF Appeal frivolous and for delay, and judgment affirmed with the maximum of damages. The plaintiff sues for the price of a slave, which he sold to the defendant for the sum of one thousand five hundred and ten dollars, by public act, dated the 15th September, 1838, in which the defendant bound himself to take up a note of the petitioner to one Daniel Murphy of New-Orleans, of the same amount, and which he had given for the purchase of this same slave, on the 28th February, 1837. The plaintiff annexes both notes and acts of sale to the petition, and alleges that the defendant refuses to pay him the said sum, although amicably demanded. He prays judgement for the amount of his demand, and that the slave, Isaac, be seized and sold to satisfy the same. The defendant pleaded a general denial, and averred that the plaintiff was indebted to him, in the sum of one thousand six hundred dollars, by promissory note, which he pleads in compensation; and prays that it be recognized, and that he have judgment over against the plaintiff for this or such other sum as may be found due; and for a trial by jury. Upon these pleadings and issues the parties went to trial. WESTERN DIST The judge overruled the prayer for a jury, on the ground that October, 1840. the suit was on an obligation which had ceased to be conditional, and there was no affidavit annexed. The defendant's counsel took his bill of exceptions. The act of sale of the slave from plaintiff to defendant, has the following clause: "The above sale is made for and in consideration of the sum of one thousand five hundred and ten dollars, for which the purchaser hereby binds himself, his heirs, &c., to take up and pay a certain promissory note for the like sum, signed by the said Mahle, payable six months after date, to the order of Thomas H. Airy & Co., endorsed by them and Michael Colgan & Company, which note bears date the 27th day of February, 1837, and is negotiable at the City Bank, &c., and was given for the consideration of the sale of said slave, from Daniel Murphy to the present vendor." There was judgment for the plaintiff, for the amount of his demand; also, allowing the defendant credit for thirty-three dollars, with interest, in compensation of the costs of suit. Boyce, for the plaintiff, insisted on the affirmance of the judgment as a delay case, and with damages. Rothrock, for the appellant, submitted the case on written points, urging, in substance, that the suit is upon a contract. which contained a condition which had not happened, and that until then, the plaintiff had no cause of action, and that the judgment should be reversed. Martin, J., delivered the opinion of the court. The plaintiff claims the price of a slave. The defendant pleaded the general issue and compensation. There was judgment against him for the price claimed, and compensation allowed in the sum of thirty-three dollars, with interest, and he appealed. MAHLE V8. TERRY. WESTERN DIST. COLEMAN ET AL The notarial act of sale shows, that the defendant gave his October, 1840. note for the price of a slave, and engaged to take up a note of the same amount, given by his vendor to one Daniel Murphy, from whom he purchased the said slave; and stipulated, that he should not be liable for any damages, interest or costs, resulting from the non-payment of the note at maturity. VS. FLINT. lous and for de There is neither allegation or proof that he took up the Appeal frivo- note; and the plaintiff has shown that he did not, by annexlay, and judging it to the petition. The judgment was for the whole. with the maxi- amount of the price claimed, and the only credit claimed mum of dama- was allowed, with legal interest from the inception of the suit. ment affirmed ges. The defendant has, therefore, no right to complain on the contrary, this appeal is evidently taken for delay, and is frivolous. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs and ten per cent. damages. COLEMAN ET AL vs. FLINT. APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF If it appears from reading the protest, that demand of payment was made at the proper place on the cashier of the bank, it is sufficient, although it may not be expressly stated that the demand was made in the bankinghouse. When the appeal is for delay, damages will be allowed. This is an action against the endorser of a promissory note, for six hundred and eighty-nine dollars and ninety-two cente, signed by Spencer Griffin, and made payable to the order of V. F. Cotton. Flint was the only endorser that made defence. He pleaded the general issue, and there was judgment against him in solido, from which he appealed. Elgee, for the plaintiffs and appellees, insisted that the WEStern Dist. appeal was frivolous and taken for delay, and that the judg- October, 1840. ment should be affirmed, with damages. Dunbar and Hyams, contra. Garland, J., delivered the opinion of the court. BOLER V8. DAY. If it appear This action is brought to enforce the payment of a promissory note, drawn by Griffin, payable to the order of Cotton, who transferred it by endorsement to E. H. Flint & Co., and they to the plaintiffs. Judgment was given against E. H. Flint alone, who is the surviving partner of the late firm of E. H. Flint & Co., and he appealed. The note has been from reading the regularly protested, and notice given to the endorser. Our protest, that demand of payattention has been directed to the protest, and it is said the ment was made at the proper demand of payment is not sufficiently set forth in it, as the place notary does not say he made the demand on the cashier in shier of the bank, it is suffithe banking-house. We think no one can read the protest cient, although without being satisfied the demand was there made. We expressly stated must consider the appeal as one for delay, and, therefore, affirm the judgment, with five per cent. damages and costs. on the it may not be that the demand was made in the banking-house. BOLER US. DAY. APPEAL FROM THE COURT OF THE SEVENTH DISTRICT, FOR THE PARISH OF Where the answer, judgment, and part of the parole evidence appears to have been lost, an application for a certiorari would be useless, as the record cannot in such a state be perfected, and when it appears that justice does not require it, the cause will not be remanded for a new trial. This is an action of slander, for slanderous words charged to have been spoken by the defendant, maliciously and with a view to slander, defame and injure the plaintiff in his good name and character. The plaintiff alleges that he has sus WESTERN DIST. tained great injury in consequence of this slander, and prays October, 1840. judgment for twenty thousand dollars in damages, and a trial BOLER V8. by jury. The answer of the defendant is lost, together with the judgment of the court, and some of the evidence taken down in writing. There appears to have been many witnesses examined on both sides, and only a part of the testimony comes up with the record. The cause was submitted to a jury, who returned the following verdict: "We of the jury are of opinion that the defendant uttered the words alleged in the petition, but that the plaintiff has not sustained any injury thereby." Upon this verdict there appears to have been a judgment rendered, and, after an unsuccessful effort to obtain a new trial, the plaintiff appealed. Downs and Copley, for the appellant prayed for a certiorari, to complete the record. M'Guire, contra, moved to dismiss the appeal. 1. That he has not been served with a copy of the petition of appeal as required by law. If this be overruled, he further prays to dismiss, on the ground that the transcript does not contain evidence of the case sufficient for this court to revise the judgment. The answer of defendant is not in the record. There is no judgment of the court. 2. There is no statement of facts; there is no evidence that the clerk was required to take down the testimony in the case. 3. This is not such a case as can be cured by certiorari. The papers missing are lost and cannot be procured or sent here by the clerk, and it is evident from what appears, that justice does not require the case should be remanded for a new trial. Simon, J., delivered the opinion of the court. The appellee filed a written motion to dismiss this appeal, on the ground that the transcript does not contain the records |