
    TRUSTEES OF ST. JOSEPH’S COLLEGE vs. LEE.
    APPEAL FROM THE PARISH COURT OF NEW-ORLEANS.
    A party who takes out a commission is not bound to have it executed, nor is a defendant who has annexed thereto cross interrogatories entitled to a continuance, on the ground of their being unanswered.
    A party who takes out a commission is not bound to have it execuled nor .g a defendant nexed thereto atories^ntmld t0 a continuanee on the ground of their Jeered. U"an'
   The facts are stated in the opinion of the court delivered by

Martin J.,

The defendant and appellant has placed his case before us on two bills of exceptions.

The first is to the denial of a continuance claimed on the ground that a commission taken out by the plaintiffs and received by the person to whom it was directed, had not been returned, and the cross interrogatories of the defendant were unanswered.

It does not appear to us the parish judge erred. A party who takes out a commission is not bound to have it executed. He may think it useless, if he discover at home, witnesses to establish facts, which he thought could only be proved by others residing abroad. The defendant did not swear that the answer to his cross interrogatories, were otherwise material to him than to explain their answer to the plaintiff’s question, and that he depended on the return of the commission for their evidence. We do not mean to say, as it is perfectly useless we should, whether such an affidavit would have authorized him to claim a continuance.

Morse, for appellant. Merrier, for appellee.

The other bill is to the charge of the Judge, who, after ° permitting the reading of a receipt of the plaintiff’s, to he read, told the jury not to allow its amount in compensation, as there was no plea of compensation.

The defendant was sued for the board and tuition of his sons. The receipt was dated after the inception of the suit, and purported to be for board and tuition posterior to the bringing the suit, and up to a future day, and it expressly stated that it was not given in relation to any sum claimed in the suit. Its amount could not, therefore, have been allowed even if compensation had been pleaded.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the Parish Court be affirmed, with costs.  