6. Where the certificate of the clerk is not in due form, the appeal will not be dismissed under acts 82 and 16 of 1866, p. 154. 22 A. 246, Flint & Jones v. Peck.

7. If the transcript of appeal does not contain all the evidence, and the clerk of the court a qua in answer to a certiorari, certifies that the testimony cannot be found, the case should be remanded for a new trial. 23 A. 28, Martinez v. New Orleans C. R. R. Co. See (f).

8. The signature of the clerk not being affixed to the certificate, and appellee having joined in the appeal, of their own motion, the Supreme Court will order the clerk to affix his signature. 27 A. 173, Michel v. Meyer. See 2).

No. 11.

9. A deputy clerk may sign the certificate of a transcript of appeal. 27 A. 507, Burton v. Hicks; 3 A. 247; 15 L. 33.

10. A defect in the certificate of the clerk is no cause for a dismissal of the appeal. 27 A. 507, Burton v. Hicks; R. S. 36.

2) Requisites of the certificate.

1. "I do hereby certify that the foregoing pages contain a true and correct transcript of all the documents filed, testimony, and evidence adduced. and all proceedings had upon the trial of the suit," is a sufficient certificate to the transcript of appeal. 16 A. 84, Barnabé v. Snaer.

2. The clerk should certify unqualifiedly, in conformity to article 896 C. P., that the transcript contains all the testimony adduced. If the clerk cannot so certify, and there has been no statement of facts prepared, no bill of exception or special verdict taken, and no assignment of errors filed, the appeal must be dismissed. 16 A. 98, Watson v. Jones; 11 A. 604.

3. Where the certificate to the transcript gives the court full "knowledge of the matters argued and contested below," the appeal will not be dismissed. 17 A. 318, Kearney v. Nixon.

4. Where the certificate shows the transcript to contain all the documents offered, and on file, the appeal must be dismissed. 19 A. 261, Carrollton v. Magee.

5. Where the transcript contains all the proceedings had, documents filed and evidence adduced on the trial, the Supreme Court may pass on the merits of the case. 21 A. 336, State ex rel. Hero v. A. Pitot et al.

6. A certificate that the foregoing is a true copy of all the proceedings had. all documents filed and evidence adduced in the case, is sufficient. 21 A. 462. Gillis & Ferguson v. Cuny.

7. A certificate of the clerk showing the transcript to be a true and correct copy of "all proceedings had, and all the evidence adduced and filed in the matter, is erroneous, and the appeal must be dismissed. 22 A. 83, Succession Sanderson.

8. "A true copy of all the proceedings had and all the testimony taken on the trial, etc., " is sufficient. 25 A. 211, Succession Waterer.

9. If the absence of any proceeding is not shown and the certificate of the clerk to the transcript omits, "and all proceedings had," the appeal will not be dismissed, nor the case continued. 28 A. 343, Benham v. Carroll.

10. The proceedings of the court below on a rule to dismiss the appeal are not a part of the record of appeal and need not be copied in the transcript; O. B. 46, Hays v. Vidou, not reported.

11. The appeal should not be dismissed for omission on the part of the clerk to sign the certificate appended to the transcript. 28 A. 576, Penn v. Evans, Jr. See 1), No. 8.

(f) Diminution of record and correction of errors.

1. Where a diminution of the record is suggested, the Supreme Court will order a certiorari to perfect it, although the case has been submitted for judgment. 15 A. 717, Trudeau v. Jackson Railroad.

2. If the transcript does not contain all the evidence, appellant must apply for a certiorari, else, if the case be thus submitted, the appeal must be dismissed. 27 A. 68, Radovich v. Frigerio.

3. Where the certificate of the clerk of the inferior court showed that documentary and record evidence which the parties were to furnish was not embraced in the transript, because it was not furnished to the clerk, and a portion of the omitted evidence was offered by the appellant; Held: That appellants were in fault for not furnishing a complete record; that a motion. to dismiss must prevail. 16 A. 40, Clark & Co. v. Gormley et als.

4. The appeal will be dismissed where documents offered in evidence are not to be found in the record, although the certificate of the clerk is regular and complete. 17 A. 130, Hall v. Beggs.

5. Where it does not appear from the transcript that any evidence was adduced, the appeal will not be dismissed. 19 A. 292, Bethancourt v. Stephens. 6. Where a motion for continuance, affidavit and bill of exception have been lost, and the record is consequently defective, the case will be remanded for a new trial. 16 A. 183, Abat & Générès v. Harris; 11 R. 477; 5 A. 602;

12 A. 83.

7. One who offers a record should procure and file copies in due time; if the clerk certifies the transcript to contain all documents filed when a record offered is not included, the fault not being imputable to appellant the case will be remanded at the costs of appellee. 18 A. 483. Marchand v. Coyle; C. P. 906; 16 A. 183, Abat & Générès v. Harris; 11 R. 477; 5 A. 602; 12 A. 83. 8. The case must be remanded, if without appellant's fault the transcript does not contain all the evidence adduced. 18 A. 278, Succession Sheean.

9. If the record does not contain all the evidence adduced, the court cannot review the case. 11 A. 72; 16 A. 40; 18 A. 232, Succession Clew; 8 A. 433. 10. Appellant whose duty it was and who fails to bring up all the evidence, cannot profit by his own wrong to have the judgment reversed to the prejudice of appellee; the appeal must be dismissed. 18 A. 229, Succession Clew.

11. The appeal will not be dismissed because the record is incomplete by the fault of the clerk. 25 A. 336, Baltimore v. Parlange. See CERTIORARI. 12. Where the record does not contain all the facts necessary for the appellate court to determine the litigation, the case will be remanded. 20 A. 505, Golding v. Petit.

13. The appeal will not be dismissed where the clerk in answer to a mandate to amend his certificate under articles 898, 899, C. P., answers: that on the second trial the attorneys of defendants withdrew in open court and declined acting further, and plaintiff's counsel required no note of evidence to be taken, and that it is not within his knowledge that any more evidence was introduced than is contained in the transcript. 21 A. 278, Lee v. Goodrich.

14. When the record is not complete and such as to allow the court to pass on the merits of the case, the appeal will be dismissed. 21 A. 299, Ruleff v. Nugent.

15. When the certificate of the clerk below shows that a portion of the evidence adduced, has been lost and is not contained in the record of appeal, the case will be remanded. 22 A. 11, Mulligan v. City of New Orleans.

16. The appeal will not be dismissed although it is made to appear by the certificate of the clerk that several documents are missing from the transcript, if these were not offered in evidence in the proceedings to obtain the judgment appealed from. 22 A. 95, Succession Peter Williams.

17. When the record is incomplete because part of the evidence used in the court below was missing at the time the record was made out, the case should be remanded. 5 A. 602; 12 A. 83; 25 A. 216, Meyer v. Dupré.

18. The substance of the testimony of a witness, not reduced to writing and bearing mérely to an incident of the trial, but brought up in a bill of exception, is not a good ground for the dismissal of the appeal. 25 A. 563, Rogers & Wordale v. Gibbs.

19. Where the certificate of the clerk is full, excepting the proceedings on an intervention dismissed and from which no appeal is taken, the appeal will be maintained. 27 A. 202, Lane v. Clarke.

20. Where the record of appeal is not complete, in consequence of the failure of the plaintiff to file with the clerk certified copies of records offered

in evidence, a writ of certiorari will not enable the defendant, who is appellant, to complete the record, and in such case the judgment of the lower court will be reversed and the cause remanded for new trial. 15 A. 63, Hagan v. Gaunt.

21. The appeal will not be dismissed if the certificate to the transcript is in due form, but all the evidence has not been brought up; appellee, who complains, should move for a writ of certiorari. 27 A. 444, Choppin v. Wilson.

22. Where the transcript is incomplete by the fault of appellee, who has withdrawn the instrument on which was founded the action, the cause must be sent back for a new trial. 16 A. 374, Hagan v. Cox.

23. Where the transcript is not complete, because appellee has withdrawn from the court certain documents which could not be copied in the transcript, the appeal will not be dismissed. 27 A. N. R., Durbridge v. Smith.

24. Where the transcript of appeal is not complete by the fault of appellee, who did not file with the clerk the record offered in evidence, the case will be remanded. Not reported, St. Romes v. Her Creditors.

25. Where no suggestion of diminution of record is made and no motion to dismiss is filed, the case will be remanded at the costs of appellant, if the transcript be incomplete. 18 A. 146, City v. Lacroix.

26. If the missing evidence would not effect the decision, the appeal should not be dismissed. 27 A. 547, Succession Gayle.

27. Where the certificate of the clerk shows that the transcript contains all the evidence adduced and there is no note of evidence in the record showing that the act of mortgage alleged to be annexed to the petition, was offered in evidence, but from the judgment rendered, it appears that the act was before the judge, the case should be remanded. 21 A. 135, Smith v. Morrison.

28. Where there is no suggestion or diminution of the record, attributable to appellant, the motion to dismiss must be refused. 28 A. 52, State ex rel. Eager, Ellerman & Co. v. Chas. Clinton.

29. Where the record is defective and no effort is made by appellant to have the same corrected, the appeal will be dismissed. 27 A. 105, Charbonnet v. Dupasseur; 7 A. 443; 8 A. 433; 17 A. 130; 21 A. 299; 18 A. 231.

30. If the clerk leave out of the transcript words that he did not understand in the judge's opinion, this is no cause to dismiss the appeal. 28 A. N. R., Marquez & Co. v. Bernard.

31. For defect in the evidence adduced and answer to certiorari, see (e), 1), No. 7.

IX. OF THE JUDGMENT ON APPEAL.

(a) In general.

1. In a redhibitory action where the judgment of the district court awarded to the plaintiff the price he had paid for the thing affected with the redhibitory vice, but did not rescind the sale, and the defendant appealed; Held: That the plaintiff, the appellee, could not throw upon the defendant the costs of the appeal by a prayer to amend the judgment by rescinding the sale, even if the judgment be modified in no other respect. 15 A. 658, Boulin v. Maynard. See infra, Nos. 13 and 16.

2. The record will be examined, when filed by appellee, in the same manner as if the transcript had been filed by appellant. 19 A. 34, Easterling v. Thompson.

3. When the appellees have not appeared and prayed for judgment, the appellate court cannot settle their rights, inter se. 20 A. 159, Moore v. Moore. 4. Where it appears by the record that the claim is prescribed and nothing shows that the debtor is dead, that his succession was ever opened and that his heirs have ever accepted the succession and taken possession of it, a judgment for plaintiff against the heirs will be reversed and the case remanded to be proceeded with according to law. 21 A. 112, Britton & Co. v. Scott.

5. The Supreme Court remanded this case for the purpose of ascertaining the value of the slaves sold and rendered executory upon the land the balance of the price. 22 A. 259, Merrit v. Merle et als.

6. Where a case has been improperly transferred from the district to the parish court, and the latter is without jurisdiction ratione materiæ, the Supreme Court will remand the case to the district court. 22 A. 133, Ogier v. Marchand; 81, Heirs Chaney v. Williams, administrator.

7. Where the defendant moved to dissolve the writ of sequestration and dismiss the suit on the face of the petition and the motion was maintained, the Supreme Court, if the petition disclose a cause of action, will remand the case. 21 A. 516, Hastings v. Brantley.

8. The judgment, on the original demand, in favor of one who appealed from the reconventional demand only, cannot be amended on the prayer of appellee. 21 A. 714, Westermeir v. Street.

9. The judgment cannot be amended as between appellees, without appeal on their part. 25 A. 508, Gantt v. Eaton & Barstow; 23 A. 146, 36, 456; 26 A. 542, Deblanc v. Levasseur; 16 A. 195, 313; 15 A. 448, Burton v. Davis. 10. No amendment can be made to the judgment in favor of appellee who has neither appealed nor answered to the appeal, praying for such amendment. 26 A. 450, Succession Ostrander.

11. The plaintiff, appellee, in favor of whom a joint judgment is given, cannot have the obligation declared a solidary one, if he does not pray for the amendment. 25 A. 487, Seyburn v. Dayries.

12. The court will presume that in rendering the judgment appealed from the lower court proceeded on proper evidence where no note of evidence appears in the record. 23 A. 504, Simmons v. Howard, Preston & Barret; 22 A. 118, Citizens' Bank v. Bringier; 23 A. 446, State v. Campbell; 26 A. 148, Heffner v. Hesse et al.; 734, State v. Monasterio; 22 A. 73; 23 A. 393. 13. Plaintiff having appealed from a judgment dismissing a part of his claim, the Supreme Court dismissed the whole, but allowed him the costs of appeal. 25 A. 226, Martin v. Cannon. See ante, Nos. 1 and 16.

14. The court will ex proprio motu notice the want of jurisdiction ratione materia in the lower court and dismiss the suit. 26 A. 603, Tessier v. Littell; 28 A. 640, Dartez v. Légé, administrator.

15. If the injunction be bonded contrary to law, the appellate court can simply annul the order setting aside the injunction. 26 A. 604, Simon v. Walker.

16. The judgment for taxes being more than the tax bill, will be reduced on appeal at the costs of appellee. 27 A. 470, City of New Orleans v. City Hotel et als.

17. Where the judgment contains an error in the surname of the defendant, the Supreme Court will correct the error if the defendant by his judicial admissions, is estopped from denying that he is the party condemned at the trial. 27 A. 491, Formento v. Robert.

18. Judgments of the Supreme Court, how executed. See CLERKS OF COURT, No. 14.

19. For want of legal service of citation the case will be remanded. See CITATION, II, No. 5.

20. For costs of appeal, see COSTS, III. (e), No. 1.

21. The presumption is in favor of the tax judgment when the evidence on which it was obtained was not offered in evidence. See EVIDENCE, III. (d),

No. 5.

22. Where the court below knew the parties, etc., the damages given for a malicious prosecution will not be disturbed. See MALICIOUS PROSECUTION, No. 15.

23. Where the citation has been served on an agent whose authority is not alleged, see PLEADING, V. (a), 3), D. No. 1.

24. Where the report of two sets of commissioners are widely different, in a. matter of expropriation, the case will be remanded. See THINGS, II. (b), 2), No. 3.

(b) Consideration due to the verdict of the jury, or judgment of the court. ( 1. Where the verdict of the jury is contrary to the admissions in the answer, the case will be remanded. 21 A. 587, Bancker & Co. v. Marti et al.

2. In setting aside the verdict of the jury, the Supreme Court should declare that their finding was erroneous. 25 A. 374, Halliday v. Lanata.

3. Where the damages assessed by the jury appears too large, the Supreme Court will reduce the amount. 27 A. 111, Teutonia National Bank v. Loeb & Co. See OFFENSES AND QUASI OFFENSES, II. (g), 2), a. No. 1.

4. Where the conclusion of the Supreme Court, from conflicting evidence varies little from the verdict of the jury, the verdict will not be disturbed. 28 A. 823, Morgan v. Sheldon.

5. Any ambiguity in the language of a witness will be interpreted so as to sustain the action of the judge a quo. 21 A. 629, Campbell v. Thibodeaux. 6. In cases of fraud great weight is attached to the opinion of the judge. 21 A. 297, Gogreve v. Windhart.

7. So also on questions of fact.

23 A. 253, Laforet v. Weber. 8. For effect and avoidance of the verdict, see JURY, IV. (c).

9. In an action for slander the verdict being set aside, the case should be remanded. See LIBEL AND SLANDER, No. 14.

(c) Laches of parties; errors of counsel; and defective pleadings or evidence. 1. Where the proceedings are so irregular that the court cannot render a decree, the case will be remanded. 19 A. 187, Walker v. Acklen.

2. Where the proceedings are irregular and not such as to permit the court to render definitive judgment, the case will be remanded. 20 A. 376, Succes

sion Rohlfing.

3. Under our system of appeals, the whole testimony is brought up and the entire case is before the Supreme Court, and when the pleadings and evidence fully sustain the verdict, it would be a vain thing to remand the cause for speculative errors on the part of the judge who tried it. 22 A. 604, Howell v. St. Charles Street Railroad Company.

4. Where defendant cited individually and in a fiduciary character, and answers only in one capacity and there is no issue joined in his other capacity, the case will be remanded. 17 A. 176, City of Jefferson v. Kaiser.

5. The certificate of notice of protest showed to what postoffice the notice was sent to the indorser but did not specify that it was the nearest post office to defendant's residence, neither was plaintiff put on his guard that the postoffice mentioned in the notice was not the nearest one; no other evidence that the certificate of notice was offered on that fact, the case should be remanded. 29 A. N. R., Hibernia National Bank v. Watson.

6. Where there is an utter absence of citation, the case will be remanded. 18 A. 336, Johnson's executor v. Shepherd Brown.

(d) Errors below in matters relating to the evidence or trial by jury.

1. Where justice requires it, the judgment confirming a default will be set aside for want of proper evidence, and the case dismissed. 20 A. 547, Pike v. State.

2. When the Supreme Court has all the facts before it, and is passing on the merits of the case, they will not notice irregularities in the charge to the jury. 21 A. 330, Malony. v Rugely; 4 M. 327; 7 N. S. 198; 4 L. 76.

(e) Failure to apply for a new trial; and of the rule "de minimis non

curat lex."

1. Because no motion for a new trial has been made, for the reversal of the verdict, this is not a good ground to dismiss the appeal, but might be a good reason to affirm the judgment. 17 A. 78, Lefrance v Martin.

2. The court cannot enter into the consideration whether the error in the judgment was committed by the appellant's counsel, so as to save appellees their costs. The latter should have applied to the lower court for a correction. 16 A. 178, Johnson v. His Creditors.

3. Where it appears that no effort was made in the lower court to correct a supposed error in the judgment with regard to the costs, and the plaintiff has judgment for a part of his demand, the Supreme Court will not disturb that part of the judgment which awards him his costs. 15 A. 294, Blanc v. Cousin.