
    ROGERS vs. DAVIS.
    ATPEAIi EEOJt THE COHMEKCIAX. COURT 01 HEW ORLEANS.
    Where the party takes his commission six months before trial to procure testimony and makes no effort, to obtain it, he has not used sufficient diligence to obtain' a continuance.
    The fear of eviction, or being disquieted in the possession of real property is no' good reason to delay the payment of the price.
    If the party knew of the incumbrance before he purchased, it is doubtful if he can even demand security when he fears eviction.
    This is an action by the holder against the acceptor of a hill of exchange drawn and made payable at Portland in the state' of Maine.-
    There were various circumstances set out in the defence to show that the acceptor had received no consideration for the draft; that it was drawn and accepted under certain conditions known to the present holder, which were never fulfilled or complied with.
    Interrogatories were propounded to the plaintiff touching his interest in and right to sue on this bill, which were ordered to be answered.
    On the 18th April, 1840, a commission was taken out by-defendant to procure the testimony of A. Clapp of Portland, the payee of the bill, to explain the circumstances under which' it was drawn and the consideration; also the incumbrance on the property for which it was given. The commission was, it seems, never executed.
    In November following a continuance was asked, until the testimony of nameless witnesses were taken, which was refused, .and the defendant ruled to trial. He took his bill of exceptions.
    There was judgment for the plaintiff and the defendant appealed.
    
      Peyton & Smith, for the plaintiff.
    
      Dwell, for the defendant.
   Garland, J.

delivered the opinion of the court.

This is an action brought by the endorsee of a draft against the acceptor. The latter alleges the consideration of the bill was part of the price of a house and lot in Portland, Maine, sold by one Eben Steel to him, and that it was drawn, endorsed and accepted, under an agreement amohg all the parties, that there was a mortgage on the house and lot at the time, which was to be raised before the bill was paid, and as it has not been raised the consideration has failed. Interrogatories were propounded to the plaintiff as to his interest in’ the bill and the" consideration of it. He answers that the bill was endorsed and given to him to collect and apply the proceeds to discharge a mortgage on the house and lot in favor of Clapp, the endorser. From these answers, the answer of the defendant to the petition and the affidavits made by him and his'agent, it would appear that Clapp had a mortgage on the house and lot; the defendant purchased it, and to accommodate all parties, Bailey drew the draft in favor of Clapp, which was accepted to facilitate the arrangement, and if the defendant had paid the draft at maturity, we think it more than probable the mortgage would jhave been released, for the amount of it at least.

Where the commission six triaHo procure testimony and makes no effort, to obtain it, he sufficient dili-

. The feaí of eviction, or being disquieted in the posses-sionofrealpro-reasonSto°delay the price16"1 °f

If the party knew of the m-cumbrance be-chased, iTis eanbtfev.eif de-when he^fears eviction,

The defendant filed his answer in April, 1840, and on the same day asked for a commission to take testimony out of the State, which was granted. PJe m,ade no effort to take the testimony. His interrogatories were answered early in May and it is presumed were soon after returned into the court below. The defendant took no other step to prepare his defence until late in October when he again asked for another commission to take testimony, but in it names no witnesses. The cause was fixed for trial on the 16th of November and five days before the day, he made an affidavit to obtain a continuance, which was offered by his counsel' on the day of trial in support of a motion to that effect. The judge overruled the motion principally on the ground that sufficient diligence was not used to procure the testimony. ~W& think he was correct. For more than six ‘ rponths after the defendant had filed his answer and had the authority of the court to procure testimony he made no effort toobtaia.it.

But if he had the testimony as stated in his affidavit, it would J not avail him. It has been long settled that a fear of .eviction , . ...... . ‘ , or being disquieted m the possession oí real property is no reason to delay payment of thp price; 3 La. Rep., 458, 490. The Purchaser may, under the La. Code, art. 2535, demand security, but it is not asked in the answer in this case ; and if . , jt were, it is somewhat doubtful whether it would have been ordered, as the defendant knew of the incumbrance when he purchased; and we believe if he had have paid the price he Prorn-isech the incumbrance would to that extent have been released.

We think the law and equity of the case are against the defendant, and therefore affirm the judgment of the Commercial Court with ten per cent, damages and costs.  