[Durnford v. Ayme.]

We think the judge a quo erred in rejecting the witness. Her deposition came up with the record, and had not one of the parties demanded a jury trial, we might have examined the case on the merits. This circumstance prevents it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulied, avoided and reversed, and the case remanded, with directions to the judge a quo, not to reject the testimony of the maker of the note; and it is ordered that the defendant and appellee pay costs in this court.

Hennen and White, for the plaintiff.
Mazureau, for the defendant.

Clay v. Oldham. III, N. S. 276.

FIRST District.

If part of the plaintiff's answer to interrogatories be stricken out, the defendant is not entitled to further time to except to what remains. If a party be called on by an interrogatory to state whether he have a paper in his possession, and he answer in the affirmative, it is sufficient if he produce it on the trial, and the opposite party is not entitled to a continuance to examine it.

If the proceedings have been changed from the juicio executivo to the juicio ordinario, judgment may be given generally against the defendant. Febrero, p. 2, l. 3, c. 2, sect. 2, no. 115; Curia Phil., p. 2, juicio executivo, no. 1.

Miller v. Pierce. III, N. S. 284.

FIRST District.

Though the judge a quo may have charged erroneously, yet if justice be done, judgment will not be disturbed.

Boyd et al. v. Howard. III, N. S. 286.

FIRST District.

The petition claimed the price of a number of barrels of flour, at a sum certain; though there was no claim for a quantum valebant, he may yet prove the value and recover it.

Millaudon v. Soubercase.

III, N. S. 287.

The action of quanti minoris must be brought within one year.

FIRST District.

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

The plaintiff claims from the defendant a sum of money which he states the defendant owes him in consequence of selling a quantity of cotton, as merchantable and of first quality, when the same was fraudulently packed, and no part of it equal to the description, except the outside of the bales.

The defendant denies the fact, avers that he acted only as agent in the sale of the cotton, and pleads prescription.

The evidence shows clearly that the plaintiff has sustained an injury; the only question is whether he has commenced his action in sufficient time to recover.

The sale was made in New Orleans, on the 22d of February, 1818, the action was commenced on the 23d of June, 1821.

On behalf of the defendant, it was urged that this is nothing more than an action quanti minoris, to wit, one for the reduction of the price, in consequence of a defect in the thing sold, and that such action must be commenced within twelve months from the date of the sale, or at least from the time within which the defect became known to the purchaser. Curia Philip. lib. 1, cap. 13, nos. 1 and 9; 11 Martin, 11.

[Millaudon v. Soubercase.]

On that of the plaintiff, it was urged, that this was not an action of quanti minoris, but one claiming damage for a fraud practised on him, and we are referred to the 6th law of the 16th title of the 7th Partida, by which it is provided that he who has been defrauded, may bring suit for reparation at any time within two years, but not after, unless he has sustained damage, and that if he has, he may claim amends of the wrong-doer at any time within thirty years.

It is not easy to reconcile the different provisions of the Spanish law in regard to these actions; for we find that the action of quanti minoris is given in cases where the seller knew the defects of the thing sold, as well as those wherein he was ignorant of them, and acting in good faith. Curia Philip. lib. cap. 13, no. 10; Commercio Terrester, Par. 5, tit. 5, ley 65. Perhaps the true understanding of them is that the buyer has the choice of either action, in case the seller has acted fraudulently. On this point however, we express no opinion. For the petition does not charge the defendant with having fraudulently sold the cotton; it states that a certain quantity of that article was sold by him, which was fraudulently packed. Which assertion by no means implies that the defendant had knowledge of the fact. In almost every case where cotton is fraudulently baled at the gins, the seller in this place, if a merchant or broker, is innocent of any participation in the cheat committed. The evidence taken. does not in any respect show the conduct of the defendant in a different light from that which the plaintiff has represented it in the petition. The knowledge of the defect in the interior of the bales is not brought home to him. The circumstances attending the sale, and the character in which he acted, exclude the presumption of fraud. The purchaser in Bordeaux might as well have accused the plaintiff of knowing in what manner the interior of the bales was filled.

Considering, therefore, the action to be one of quanti minoris, and that it was not brought within the time prescribed by law,

It is 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 there be judgment for defendant as in case of nonsuit, with costs in both courts.

8*

Banks v. Eastin. III, N. S. 291.

FIRST District.

If the note be regularly endorsed, the defendant cannot put the plaintiff on the proof of his right to it.

Unless there is an allegation that the plaintiff did not come to it bona fide.

An endorsement in blank, makes the note payable to bearer.

Allard et al. v. Lobau. III, N. S. 293.

FIRST District.

Every affidavit for a continuance, should contain a declaration that the evidence is material, that due diligence has been used to procure it: that there is an expectation it will be had, and that the application is not made for delay.

A judgment against a person who sues to abate a nuisance, does not form res judicata against another who brings a similar action.

The right conferred on the Navigation Company, to make a road along the banks of the bayou St. Jean, is not a surrender of the sovereignty of the public.

A squatter on public lands has no right to object to a road being run through his possessions.

Parol evidence cannot be given of the contents of a grant.

The right of the public to make roads, is not limited to the banks of navigable streams.

Possession cannot be pleaded against the public, unless it is immemorial.

Labarre v. Lambert. III, N. S. 300.

The plaintiff may, by the introduction of evidence by the defendant, obtain judgment, on a different ground from that prayed for in the petition.

FIRST District.

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

The petition states Mrs. Lambert sold the plaintiff a negro, who soon after the sale went away, and was afterwards found in the possession of one Tyrrel, (in the state of Mississippi,) who claimed him under a title anterior to Mrs. Lambert's; whereupon the plaintiff brought suit against Tyrrel, and gave notice to his vendor that she might support her title. He concluded with a prayer that she might be decreed to pay back the price, with the costs of the suit, and that he might have further relief.

The answer denies that the disturbance complained of in the petition, gave rise to an action against her, the suit against Tyrrel, by the plaintiff, on showing, being still undetermined.

At the trial, the plaintiff introduced, without any opposition, the record of his suit against Tyrrel, which had in the meanwhile been determined; and in which Tyrrel had prevailed.

The district judge was of opinion that the plaintiff had no cause of action on the inception of the suit, Tyrrel having then no judgment, and the plaintiff's situation, in the present suit, was not bettered by the judgment afterwards obtained by Tyrrel. He accordingly nonsuited the plaintiff, who appealed.

The answer admits, because it does not deny, what the plaintiff alleged, viz. that Tyrrel detained the slave as his own property, and on the allegation of a title to him anterior to Mrs. Lambert's. The plaintiff has since shown, without any opposition, that in the suit he brought against Tyrrel and of which he gave notice to his vendor, that she might support her title, Tyrrel has prevailed, and the plaintiff lost his slave.

On the petition and answer, the case stood, quasi on a demurrer at common law, and the question was merely one of law, whether the plaintiff's action was not premature, the suit against Tyrrel being undetermined. The defendant suffered the issue to be changed, by allowing the introduction of the record of the suit against Tyrrel. It shows the latter prevailed. The consequence is that the plaintiff must have judgment on a different ground, from that he had claimed in the petition, i. e., because he has been evicted on a suit of which he gave