
    
      FLEEKNER vs. GRIEVE'S SYNDICS.
    
    Appeal from the court of the first district;
    in determine on the propriety of allowing a ded. pot. the court may look into the record ot' another suit, between the So^nayThe^su-theTppeif’if that record he there also. If fraud he *d.a/>oí.etshaU prove!t.te<^ t0 The affidavit ought to specify the fact, intended to be proven, that the may°Savouiarthe admit‘
   Martin, J -

delivered the opinion of the court. This case is before us on a bill of exceptions to . . r , ,. . r the opinion of the district court, m refusing to the defendants a dedimus potestatem

The Pontiff claims rent, for certain premises from the defendants, who pleaded the general issue Ollly.

A short time, after the period fixed for an application for a ded.pot. the defendants claimed one, Qn an affidavit that they had just come to the 7 J J knowledge that certain persons, in England, ° . i could not only disprove the plaintiff’s claim for rent, but also prove that the pretended title, under which the claims, was given and executed in fraud of the creditors represented by the defendants. The district judge gave as a rfeason 4700 for the refusal that the matter, expected to be proven, was res judicata, between the same parties, in a former suit.

There is not any statement of facts, and we are not enabled by the record to discover, whether the matter be really res judicata.

The plaintiff’s counsel has attempted to shew it by the production of the record of the case, in which the .alledged decision took place. It is the record of a suit originating in the court a quo* and the defendants’ counsel contends that tve cannot take notice of it, as it makes no part of, nor is referred to in, that of the present suit. The case is on our files, as it came up to this court and was finally decided by us, and the district court was directed to carry our judgment into effect. Hence, it is in our knowledge that the matter is res judicata, and this appears bv the record of this court. It was also in the knowledge of the district court, who was correct in noticing it, since it there appears on record also.

Farther, it appears to us that the affidavit was insufficient. The only fact, which is positively stated, is that the plaintiff’s title was given and executed in fraud; but fraud was not alledged, and the pleadings did not allow anv evidence 1 b Of it.

Smith for the plaintiff, Livingston for the defendants.

The facts by which the claim for rent was expected to be disproven ought to have been specifically stated, in order that the plaintiff might exercise his right of averting the delay, by an admission of them ; which, from the manner in which the affidavit is worded, cannot be done, without admitting the consequences drawn by the adverse party from unknown facts.

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