
    Sarah W. Liles v. The New Orleans Canal and Banking Company.
    Damages can be assessed only by a jury; and in suits before the District Court of the First District, or the Parish, or Commercial Courts of New Orleans, the plaintiff must advance the compensation allowed to the jurors by the 17th sect, of the act of 10 February, 1841, where the defendant has not done so. C. P. 313.
    In an action to recover a promissory note, or the amount for which it was made, with damages for its detention, the note was sequestered and delivered to the plaintiff on her giving bond to return it, in case it should be decreed to belong to the defendants. Judgment having been rendered in favor of the plaintiff for the note and damages, the defendants appealed from so much of the judgment only as related to the damages, and gave bond for a suspensive appeal in a sum fixed with reference to that part of the judgment. Heldy that the acquiescence in the part of the judgment not appealed from, was not such a voluntary execution of the decree, as to prevent au appeal fróm so much of it as assessed damages.
    Appeal from the District Court of the First District, Buchanan, J. The plaintiffs sued to recover a note in the possession of the defendants, or its amount, with damages for its detention. The note was sequestered, and delivered to the plaintiff by the Sheriff, on his executing a bond, with security, to restore it in case it should be decreed to belong to the defendants, and to satisfy such judgment as might be rendered in the suit. Judgment was rendered -by the court, without the intervention of a jury, ordering the note to be delivered to the plaintiff, or, in default thereof, condemning the defendants to pay its amount, with interest, and a sum of $500 as damages. A suspensive appeal was allowed, on the defendants giving a bond in the sum of $800. It was admitted that the note was in the possession of the plaintiff, and that the appeal was not taken from the part of the judgment relating to the note, but only from so much of it as awarded damages.
    
      Chinn, for the plaintiff.
    
      F. B. Conrad, for the appellants.
   Martin, J.

The defendants and appellants urge as a reason for the reversal of the judgment, an error apparent on the face of the record, to wit; that a judgment by default was confirmed,'and damages given against them by the court, without the intervention of a jury. They rely on the 313th article of the Code of Practice, and 18 La. 474. The' plaintiff and appellee admiis that those authorities were conclusive before the late act of Assembly, which requires the party who wishes for a jury, to deposit the sum of twelve dollars. To this the opposite counsel has, in our opinion, victoriously replied, that the plaintiff was the party who had an interest in calling for a jury, for without it, the court could not legally give damages to her. She, therefore, ought to have made the deposit.

The plaintiff’s counsel has further urged, that the defendants have voluntarily executed part of the judgment, and cannot appeal for the balance. The plaintiff claimed as her property, a note in the possession of the defendants. She had it sequestered, and it was finally delivered to her. She afterwards proceeded in her suit for the damages resulting from the improper detention of the note. They were, as we have seen, allowed her, and the defendants sought to be relieved by a partial appeal. This, in our opinion, is correct.

It is, therefore, ordered and decreed, that the judgment be annulled and reversed, so far as the confirmation of the judgment by default gives damages ; and that the case be remanded for further proceedings according to law; the costs of the appeal to be borne by the plaintiff and appellee.  