[King et al. v. Havard.]

El acreedor no puede pedir, ni cobrar, la deuda en parte, contra la voluntad del deudor. Cur. Phil. Comm. Terr. 22.

Le creancier ne peut forcer le debiteur a payer par parties. Dumoulin, de dividuo et individuo, n. 6 and 7; 6 Toullier, 776, 777. The district court, in our opinion, erred in coercing payment from the defendant by parcels.

As the transfer to Holliday was approved of by the defendant, and he promised to pay, he must be bound by his assent to the severance of the sum transferred to Holliday from the claim of Garriot.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and that there be judgment against the defendant in favor of King & Beatty, for three hundred dollars, with interest from the inception of the suit; and that there be judgment against Thomas; the appellees paying costs in this court, and the defendant below.

Thomas, for the plaintiffs.
Oakley, for the defendant.

Bullard v. Wilson. V, N. S. 196.

Whether the endorsee take up a note by payment or by novation, his recourse against the endorser is the same.

A witness swearing that he had no recollection of giving the notice of a protest, except from the memorandum on the back of it, but that he had no doubt he had given it, or he would not have made such a memorandum, is legal proof that the notice was given.

SIXTH District.

In this case the Court said:-The plaintiff, as endorsee, sues the first endorser, who pleaded the general issue, and that the maker of the note obtained an accommodation on it in bank-that the note was not paid by the plaintiff, but the debt of which it is the evidence, was extinguished by novation, the bank having received in exchange another note for the amount of the one on which the maker might, according to agreement, have obtained a renewal-that the plaintiff is not the owner of the note sued on-that the defendant received no consideration for his endorsement, nor any notice of protest. There was judgment against him, and he appealed.

VOL. III.-43

[Bullard v. Wilson.]

The protest was produced, and the signatures of the makers and all the endorsers anterior to the plaintiff, were proved.

The cashier deposed that the maker of the note had accommodations in bank to a large amount, for which various notes were given, and the debt was gradually reduced, after several renewals, to the sum for which the note sued on, was given-severel sums from different loans being consolidated. At the maturity of this note, the defendant declined farther endorsements, and the plaintiff took it up after protest, by paying the proportion required on the renewal, and giving his own note for the balance. The proceeds of this last note were placed to the plaintiff's credit, and he gave a check for the whole amount of the note sued on, which was surrendered to him by the witnesswho would not have paid the proceeds of the note last discounted, to the plaintiff, while he stood debtor on his endorsement, if the money had not been called for to pay the protested note.

The parish judge's memorandum of his having given the protest to the defendant in person, was on the back of the protest, and he deposed he had no recollection of giving it, but he had no doubt of his having given it, as he never made such a memorandum without having given the notice.

The endorsement of the note by the defendant to Thomas, and by Thomas to the plaintiff, are proved-so is the protest, and the payment of the note by the plaintiff.

There is as good evidence of the notice as is possible to be expected. A notary who daily protests and gives notice of the protest of a great number of notes, cannot possibly be able, at a distance of time, to recollect the very day he gave a particular notice, unless, immediately after he gave it, he made a memorandum of it; and it is from the information which his memorandum recalls, that he can satisfactorily establish either the day, the place, or the person whom he notifies.

In this case, therefore, the notice is duly proved. See Alton et al. v. Trimble et al., 4 Bibb, 22.

There was no novation of the debt of the maker of the note, nor of the defendant.

The plaintiff, being bound to pay the amount of the note, after protest and notice, discounted his own note, and paid its proceeds, and another sum of money to discharge his debt to the bank and acquire a right to his reimbursement, on the maker and the anterior endorsers. Whether he novated or paid his own debt is immaterial as by either way he was subrogated to the rights of the bank.

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

Bullard, for the plaintiff.

Wilson, for the defendant.

White v. Cumming. V, N. S. 119.

In a hard case, the court will not mulct a defendant in damages. What is to be called a hard case?

SIXTH District.

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

The defendant states the note he is sued on was given for the price of a negro boy, sold him by the plaintiff; who represented him as very healthy and a valuable field hand, while "he is on the contrary, and ever since he purchased him has been sickly, languid and stupid, and so much addicted to stealing, as to be a constant damage, and is unfit for the purpose for which he was intended." He concludes with a prayer for the rescission of the sale, or a diminution of the price.

The plaintiff being interrogated on oath, by the defendant, declared the note sued on was given for a part of the price of the slave mentioned in the answer, and the balance of the price, two hundred dollars, was paid him by the defendant; that he, the plaintiff, did not most particularly state to the defendant that the slave was strictly honest, remarkably healthy, and a fine field hand; the slave was never before the purchase in the possession of the defendant.

The plaintiff had judgment and the defendant appealed.
The statement of facts shows that

Bray deposed, that when he first saw the slave, the defendant and his wife said he was unwell. He was purchased in the summer, and was sent to the plantation of the witness in the fall. He was very

much swollen. The witness first saw him two or three weeks after he was bought. The slave always, at times, appeared subject to swelling. He is lazy and indolent, more so than any of his age the witness ever saw; the witness would not keep him for his victuals. He is stout and strong and looks tolerably well.

Dr. Sebly deposed the slave was brought in four or five weeks ago considerably swollen, in the belly, face and eyes. He bears old marks of frequent bleedings. The witness can not tell whether his disease be ancient or recent; but thinks it is an incipient dropsy. The slave is now better. A dropsical state of the system is not easily removed, but the cure is easier in young than in old persons.

The defendant has failed in establishing a redhibitory defect, and was properly refused relief, although his bargain appears a hard one, but we do not think ourselves bound to mulct him in damages.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs in both courts.

Thomas, for the plaintiff.

Scott, for the defendant.

Byrd v. Bowie. V, N. S. 201.

If the contract be usurious, the creditor can only receive the principal, without interest.

SEVENTH District.

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

The defendant, sued on his promissory note, pleads payment-that his co-obligor, many years since, delivered to the plaintiff a negro man worth 1200 dollars, whose value ought to be imputed to the payment of the note-and that he further delivered two negro men to labor for the petitioner, whose services were worth more than the amount of the obligation.

There are interrogatories annexed to the answer, but it is unnecessary to set them forth, or the replies which were made to them.

The delivery of the negro man, in payment, is proved, and a receipt of the plaintiff's shows that his value was fixed at 550 dollars.

The only difficulty in the case relates to the other negro, who, the defendant affirms in his answer, was delivered on hire. If this were true the court would be inclined to think that the services of such a slave were not worth more than the use of 1200 dollars; but the evidence offered, and received in the cause without opposition, shows that the negro was sold and delivered to the plaintiff, in absolute property, and that the consideration for the sale was the loan of the sum already mentioned, for the space of four months. This is one of the strongest examples of usury and extortion, which has yet come before this court. The defendant is clearly entitled to a credit for the value of the slave, which is proved to have been 350 dollars, and the plaintiff can only recover the balance of the principal without interest. Hermann v. Sprigg, 3 N. S. 190.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the plaintiff do recover of

[Byrd v. Bowie.]

the defendant the sum of 300 dollars, with costs in the court of the first instance, those of appeal to be borne by the appellee.

Scott, for the plaintiff.

Oakley, for the defendant.

Sterling and Wife v. Drew et al. V, N. S. 203.

The possession acquired by actual occupation, though not maintained during the whole period required for prescription, cannot be interrupted by a possession merely civil. Where both claimants have obtained a relinquishment from the United States, he who had the best title from the Spanish governinent will prevail.

SEVENTH District.

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

The plaintiffs in this case claim title to a certain tract of land described in their petition. The defendant, Drew, disclaimed any right to the property, and the inhabitants of the parish of Ouachita were permitted to interfere in the suit, and become defendants. Judgment was rendered in their favor in the court below, from which the plaintiffs appealed.

The title set up by the latter is founded on an incomplete grant from the Spanish government to one Epinette, who conveyed his right to the Baron de Bastrop, from whom the title has been transmitted to the appellants, through several mesne conveyances, and has been recognised and confirmed by the United States.

The defendants claim title to the premises in dispute as having been set apart for the use of the parish, to be employed in public purposes, such as a burying ground and site for a church. This claim has been also confirmed by the government of the United States.

In support of the plaintiffs' title, prescription is relied on as based on possession of ten years, and in their claim this must also be taken into view.

In the act of sale from Epinette to Bastrop, the land sold is limited by that now claimed by the defendants. All the subsequent deeds embrace it within these limits. Possession since the year 1810 is proved to have been held under Bastrop's sale, which included the disputed property. Those who claim in conformity with this deed, have had only a constructive possession of the land now sued for,