
    Felix Rieder v. Gaspard Theurer.
    Where the holder of a note endorses on it that he has received from the maker four smallernotes, amounting together to the sum for which the first note was given, which, when paid, will be in full of the original note, he may sue on the latter, but to protect the defendant from the danger of suits by endorsees of the smaller notes, the judgment should provide that no execution be issued, nor the judgment itself be recorded by the Recorder of Mortgages, until the smaller notes are delivered to the defendant, or deposited for him in court.
    Appeal from the Parish Court of New Orleans, Maurian, J.
   Martin, J.

The defendant is appellant from a judgment on his promissory note, the payment of which he resisted on an allegation that the note had been divided into four others. It appears by an endorsement on the back of the note, that the plaintiff had received from the defendant, after the maturity of the note, four smaller ones, amounting together to the sum due on that sued on, which the plaintiff declared would be, when paid, in full of the original note. This endorsement certainly precluded the plaintiff from suing on the original note, without tendering the four smaller ones. But he was not obliged, as the defendant states in his answer, to institute a suit on the smaller notes, or on any of them. Had the latter, instead of urging the plaintiff s obligation to do so, demanded that judgment should not be given against him, or that its execution should be suspended until the four small notes were returned to him, he might, perhaps, have claimed at our hands the costs of the suit in the Parish Court. That court ought, however, in our opinion, to have protected him from the danger of being sued by the endorsers of the plaintiff on the small notes. He is entitled to this relief at our hands, and it is our duty to amend the judgment in this respect. For aught that appears on the record, these notes may be afloat.

It is therefore ordered, that the'judgment be affirmed, with this amendment, to wit, that no executionshall issue thereon, nor shall the judgment be recorded in the office of mortgages, until the four smaller notes enumerated on the back of the original one shall have been delivered to the defendant, or deposite! for him, duly cancelled, in the office of the Clerk of the Parish Court. The costs of the appeal to be paid by the plaintiff and appellee.

Canon, for the plaintiff.

Eyma, for the appellant. 
      
       This action was instituted before the maturity.of the last of the four smaller notes.
     