
    John A. Letten v. John F. Spearing et als.
    If the Court shall think it not possible to pronounce definitely on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior Coart refused to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower Court, with instructions as to the testimony whioh it shall reoeivo, to the end that it may decide according to law.
    APPEAL from the Second District Court of New Orleans,
    
      Howell, J. Train & Cambray, for plaintiff. O. L. Bright, for defendant.
   Hyman, C. J.

In this case, A. Brown & Co., alleged by plaintiff to be a commercial firm composed of A. Brown and W. J. Key, were sued as endorsers of a promissory note, dated 1st October, 1860, and payable 1st October, 1861, to the order of John E. Spearing. Plaintiff alleged that the note was endorsed by Spearing and A. Brown & Co., before its maturity, and that, at its maturity, it was protested for non-payment, and due notice of its dishonor given to A. Brown & Co.

On the 4th of May, 1864, the District Judge rendered judgment against the partners of the firm of A. Brown & Co., for the amount of the note, say $850, interest, cost, etc., and they have appealed from this judgment.

On the trial of the suit in the lower Court, as against A. Brown & Co., no evidence was introduced of the dishonor of the note or notice of its dishonor to them. Such evidence should have been adduced to hold the endorsers liable.

We shall, in this case, use the discretion allowed to us by Article 90G of the Code of Practice. We do so because we are under the impression that the clerk of the lower Court may have omitted to take a full note of the evidence as it was adduced.

It is ordered, adjudged and decreed, that the judgment of the District Court be reversed.

It is further decreed, that the case be remanded to the District Court, to be proceeded in according to law; plaintiff to pay costs of appeal.

Howeee, J. tecused.  