WINDLE vs. FLINT.

tice, which in

WESTERN DIST. defendant to have a judgment obtained against the maker, October, 1840. and his admissions of liability, show that he believed the notice to have been regularly put in the post-office in NewOrleans, though not received by him. An endorser may well, under an ignorance of the facts, consider himself liable the want of no when he is not, because notices need not be personally servlaw creates a ed. It is true that affirmative proof of an endorser's knownew obligation, he is not bound. ledge in such cases is not required, and may be inferred from So, where the the attending circumstances: but in the present case, we ted his liability see nothing from which it can be reasonably inferred that and the defendant had any knowledge that he was discharged said that time from liability by want of notice. Bayley on Bills, p. 297 and given to the ma- following: following: 12 Louisiana Reports, 467. 13 Idem., 420. 3 ker of the note should not affect Kent's Commentaries, 113.

endorser admit

after the note

was due

protested, and

his liability; but it appears he was not liable at the time, for want of due no

It is, therefore, ordered, that the judgment of the District Court, be annulled, avoided and reversed, and that ours be for the defendant, as in a case of non-suit; the plaintiffs and acknowledg- appellees paying costs in both courts.

tice of protest

Held, that his

ment did not bind him.

WINDLE vs. FLINT.

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

Judgment affirmed as for a frivolous appeal; but it already bearing ten per cent. interest, only five per cent. damages was allowed.

This is an action against the maker and endorsers of a a promissory note. The maker and first endorser made no

defence. Flint, the second endorser, pleaded the general WESTERN Dist. issue.

The plaintiffs offered in evidence the note and protest, with proof of the signatures to the note.

The notary certified that he deposited notices of protest to E. H. Flint, addressed to him at his domicil near Alexandria, and to Messrs. Thomas and E. H. Flint, at their domicil near Alexandria, as executors of M. P. Flint, deceased.

There was judgment against the defendants, and Flint alone appealed.

Hyams, for the plaintiff.

Ogden, contra.

Morphy J., delivered the opinion of the court.

E. H. Flint, one of the defendants, being sued as endorser of a promissory note, pleaded the general issue. Judgment was rendered against him, and he appealed. No serious defence appears to have been made below, nor any attempted before this court. The appellee has prayed for damages for the frivolous appeal. We think that he is entitled to them, but as the note sued on, already bears ten per cent. per annum interest, we shall grant only five per cent. as damages on the amount of the debt.

It is, therefore, ordered, that the judgment of the court below be affirmed, with costs and five per cent. damages.

October, 1840.

WINDLE

FLINT.

WESTERN DIST.

October, 1840.

FULTON US. GORTON'S EXECUTOR.

FULTON

vs.

GORTON'S EXEC

UTOR.

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

Damages as for a frivolous appeal, will not be allowed on the affirmance of judgment dissolving an injunction, which already gives ten per cent. interest, and twenty per cent. damages.

This is an injunction case. The plaintiff alleges, that at the sale of Gorton's estate, he became the purchaser of a slave man for the price of one thousand four hundred and eight dollars, that he has since discovered said slave was subject to the redhibitory vice of a runaway; that he has been in the habit of running away, and is so worthless, on this account, that had he known of the vice he would not have purchased; that he has tendered said slave to the executor of Gorton, who refuses to receive him back, but is proceeding with an order of seizure and sale to enforce the price. He prays for an injunction to stop the sale, and that the defendant be compelled to take said slave back, and return him his notes.

The defendant denied there were any redhibitory defects in the slave, and averred that he was only sold with warranty of title, that there was no fraud or concealment. He denies there was any tender of the slave, and prays that the injunction be dissolved with damages.

On the trial, the plaintiffs offered no evidence. The defendant proved, that the fee for defending this suit would be from one hundred and fifty to two hundred dollars.

There was judgment dissolving the injunction, with ten per cent. interest, and twenty per cent. damages on the sum enjoined. The plaintiff appealed.

Dabney, for the plaintiff, submitted the case.

Hyams, contra.

Simon J., delivered the opinion of the court.

This is a redhibitory action, instituted by way of injunction. The slave in question, was purchased without warranty of any kind except as to the titles, and the plaintiff has produced no evidence whatever in support of any of his allegations. This appeal was clearly taken for delay, and had it not been that the District Court, in dissolving the injunction, allowed the defendant ten per cent. interest, and twenty per cent. damages on the amount of the judgment enjoined, we should have felt disposed to mulct the appellant in the full amount of damages allowed by law, as for a frivolous appeal.

We deem it unnecessary to notice the bill of exceptions. found in the record, as it is perfectly clear that a party cannot demand and be allowed a trial by jury, during the progress of the trial of a cause before the court.

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

WESTERN DIST.

October, 1840.

GORDON

vs.

NELSON.

GORDON vs. NELSON.

APPEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF
CONCORDIA, JUDGE DAVIS PRESIDING.

The holder of a note endorsed in blank by the payee and others, whose names precede that of the plaintiff himself, he may strike out all the subsequent and special endorsements, and recover against the maker. Where a commission to take the deposition of witnesses, is directed to a person by name, as a commissioner in another state, there is no necessity of proving his signature.

If the return or certificate of the commissioner, is attached to the deposition by a wafer, and returned with it, it is sufficient.

WESTERN DIST. Where a note and protest are permitted to be read in evidence, without objection, it is too late to question the signatures thereto, for want of proof.

October, 1840.

GORDON v8.

NELSON

The plaintiff instituted suit against the defendant, as maker of the following promissory note:

$5500.

"Vidalia, (La.) March 4, 1838." Twelve months after date, I promise to pay Silas Lillard, or order, $5500, value received, payable at the office of discount and deposit of the Mechanics' & Traders' Bank of New-Orleans, at Vidalia." "WILLIAM NELSON."

(Endorsed.) "Silas Lillard, Robert Slaughter, Benjamin Lillard, William Slaughter, John Covington, Henry R. Menafee, Bazil Gordon."

(Special endorsements.) "Pay to the order of A. Robinson, Jr., Cashier, by L. Venally."

Pay W. A. Dunlap, Esq., Cashier, or order."

"W. E. LEVERICH, Cashier."

The notary states, that at the request of W. A. Dunlap, cashier of the Mechanics' & Traders' Bank, at Vidalia, he went to the bank where the note was made payable, and exhibiting the note to the cashier, demanded payment of the same; and finding there neither maker or endorsers, and no person offering to pay, he protested, &c.

He certifies, that not knowing the residence of any of the endorsers, except Lillard, he enclosed notices addressed to them, to A. Robinson, Jr., cashier, in Richmond, Virginia, which he deposited in the post-office at Natchez, being the nearest, on the same day; and that he deposited notices for Lillard and Nelson in the same post-office, on same day.

The plaintiff prays judgment for the amount of his debt, and that the property mortgaged to secure payment, be sold to satisfy his judgment.

The defendant admitted his signature to the note, and denied specially every other allegation in the petition, and prays for a trial by jury.

Upon these pleadings and issues, the cause was tried.

There are several bills of exception to the admission of the depositions of witnesses, taken by commission out of the state, which are fully stated in the opinion of this court.