Carraby et al. v. Morgan. V, N. S. 499.

FIRST District.

A sheriff who seizes property not subject to execution, is liable to an action for damages.

A party may always have an injunction when the act would give rise to a claim in damages.

He who interpleads, cannot change the nature of the action in which he intervenes.

ces.

Akin et al. v. Bedford et al. V, N. S. 502.

FIRST District.

He who remits a bill, his own property, must abide the consequen If Titius directs Caius to remit the balance of his account, and this be done by Antonio's bill payable to Caius, supra protest, and Antonio fail, by whom will the loss be borne? If Caius, in taking the bill, did not act as Titius' agent, as if he possessed the bill, or acquired it before he received the order-or if, having taken it after the order, it appears he acquired it for himself, as e. g. if he remitted it at a different rate of exchange, by which he gained something, the sale of the bill is at his risk; for he is considered as a drawer. Casa regis, 62, 63, p. 49, 50.

Elkins v. Canfield. V, N. S. 505.

PARISH Court of New Orleans.

If letters of curatorship be granted without legal citation, as demanded by Code of Practice, art. 966, they will be annulled at the suit of any person interested.

EASTERN DISTRICT, APRIL TERM, 1827.

Breaux v. Gireaud. V, N. S. 509.

FIRST District.

If the sheriff actually swore to his return of a citation of appeal, and the clerk omitted to add the jurat, the appellant has a right to have the omission supplied.

Case remanded, with directions to the judge to order the clerk, if the sheriff did swear to his return, to add the jurat thereto, and if he did not, or the clerk does not recollect that he did, to receive the sheriff's affidavit; and it is ordered, that the appellee pay costs.

Allain v. Whitaker et al. V, N. S. 511.

The declaration of a notary that he gave notice of the protest of a note, must be recorded under his signature and that of two witnesses.

Whether it ought not to state in what post-office the notice was put.

THIRD District.

VOL. III.-54

[Allain v. Whitaker et al.]

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

This action was brought against the drawers and endorser of a promissory note. The drawers suffered judgment by default to be taken against them, and permitted the same to be made final. The endorser pleaded to the action, and judgment being rendered against him, he appealed.

The answer averred, that service of the petition and citation had not been made in the French language, on the defendant, though it was his mother tongue. That no notice of protest had been given him-nor had payment been demanded of the maker. That after the maturity of the note, time had been given to him without the consent of the defendant.

The first question presented on the record, arises on a bill of exceptions. The defendant objected to the note being read in evidence, because the endorsement was in blank. The judge overruled this objection, and in our opinion correctly. It has been repeatedly decided in this court, that an endorsement in blank passes the interest of the endorser in a commercial note, and that the holder may maintain an action on it as endorsee.

The exception to the service of the petition is contradicted by the sheriff's return, which expressly states that copies of the petition and citation were left with the defendant in the French language.

The uniform practice in this state has been to receive the protests of notaries as evidence of demand on the maker of a note or acceptor of a bill of exchange. The distinction on this head between inland and foreign bills, which is known to the English law, has never been in our experience adopted by us. The legislature, by directing the notaries to record all protests made by them, seem to have acted on, and sanctioned the usage which already existed, to admit them in evidence. No good reason exists, why we should give more faith to a foreign notary, than to one of our own officers. That of convenience is not sufficient to establish the distinction, for there would be nearly as much inconvenience produced by refusing the one as the other. We therefore think, the protest offered in this case, was good evidence to prove that demand had been made on the drawer.

The notice certified by the notary, under the act of 1821, we rather think does not comply with the provisions of that statute. It is in these words: First endorser notified by written notification, by mail, at St. Francisville, 5th July, 1824, by Joseph Trinchard. The statute requires, that the names of the drawers and endorsers, together with the manner in which the notices were served or forwarded to them, shall be furnished by the notary. That given here does not state in what post-office the notice was put, and we cannot supply, by presumption, any thing wanting in evidence of this kind, which the endorser had not an opportunity of cross-examining.

But admitting this objection, on which we express no positive opinion, could be got over, there is a still more fatal one, to the introduction of the certificate. The statute requires that the declaration of

nesses.

[Allain v. Whitaker et al.]

the notary shall be recorded under his signature, and that of two witIn the present case, the declaration was recorded without any. There were two witnesses to the protest. But none appears to the record, which the law requires the notary to make of the manner he gave the notices of that protest, and without them the declaration is clearly not evidence. Act of 1821, p. 44.

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 plaintiff, as in case of nonsuit, with costs in both courts.

Eustis, for the appellee.

Ripley and Conrad, for the appellant.

Bird v. M'Micken. V, N. S. 515.

COURT of Probates of West Feliciana.

A case is prematurely heard on the merits when all proper parties are not notified, and judgment by default taken, or issue joined.

Balfour v. Chew. V, N. S. 517.

The copy of the probate of a will is the copy of a judicial proceeding, which must be certified under the act of congress of 1790.

THIRD District.

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

This case commenced by an application for an injunction, to prevent the defendant selling certain slaves mentioned in the petition, which the plaintiff alleges to be her property. The answer denies her title,