delivered the opinion of the court.
The appellant, a third possessor of mortgaged property, made opposition to an order of seizure and sale, on the ground that no demand had been made of the principal debtor, thirty days previously to the issuing of the process. His injunction was dissolved, with damages and costs; and he appealed.
Emile Barthe was the original mortgagor, and the debt sued for is evidenced partly by his promissory note, protested more than thirty days before the issuing of the order of seizure, and partly by notes signed by Gurlie, the appellee, and by Soniat, which Barthe had assumed to pay. Although these latter notes appear to have been duly protested for nonpayment, and thus a demand shown of the makers, yet there is no evidence that payment had been demanded of Barthe, who in the act of. sale had assumed to.pay them. Barthe was the debtor and mortgagor, of whom the law requires a demand at least thirty days previously to the issuing of executory process against a third possessor. It does not suffice, in our opinion, to show that the plaintiff’s own note, and that of Soniat, which Barthe assumed to pay, have been protested; it was incumbent on him to show that Barthe himself was in default.
The court, in our opinion, did not err in disregarding the prayer for a trial by jury. Code of Practice, 757. 8 Martin, N. S., 370.
It is, therefore, adjudged and decreed, that the judgment of the Parish Court be annulled and reversed ; that the injunction be reinstated, and the case remanded for further proceedings, according to law ; the appellee paying the costs of this appeal.