
    
      GREEN vs, BOUDURANT,
    
    -the judge of the fifth presiding. Appeal from the court of the seventh district
    Ifthe debtor has a right to postpone payment on several notes given to the matt toSthey™sig-notes to Pre-ventarecov-ery on one which remained ⅛ the hands of the assignor. A jury must he prayed for in time to *he ⅜6⅛⅜<1 a
   Porter, J.

delivered the opinion of the * , court. The defendant executed, in favour of the plaintiff, his three several notes, due in January, 1824,1825, and 1826. They were given m payment of a tract of land, and a con- ... , . . . . dition was annexed to them, that in case the land was overflowed, and a crop lost by high J water, payment was to be postponed for one r J r 1 year, without interest. "

There was an overflow in the years and 1826, and a partial one in 1824, which diminished the crop of that year.

This action is brought on the note which first fell due, and as a crop was made in 1825, Aere can be no doubt the plaintiff is entitled to recover, unless the defence of payment, set up in the answer, has been sustained.

The defendant paid the note which became due in 1825. He insists this payment was made in error, and should be imputed to the note then due, viz. that on which this suit is brought. This defence might, perhaps, avail him, if the payment had been made to the plaintiff; but it appears he paid his endorsers. to whom the note had been transferred for a valuable consideration. The error, therefore, one for which theplaintiffis responsible. He cannot be prevented from recovering what is due to him, because the defendant has paid to others what was not due to them.

Johnston for the plaintiff—Patterson for the defendant.

There is a bill of exceptions to the judge’s refusal to grant a jury. The prayer was made after the jury was discharged; and though a portion of them were then out in a criminal case, and confined because they could not agree, the judge acted correctly in refusing the application. He could not know that the jury then in deliberation, would give a verdict before the end of the term, and the trial of the cause might have been postponed.

We do not think this a case in which damages should be given for the appeal being frivolous.

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