delivered the opinion of the court.

This is an action on a promissory note. The defendants are sued as the makers and endorsers of a note. They *313averred in their answer, that the note sued on, with several others, were given in exchange for one of a larger amount; that the original note was given for the price of a tract of land, which formed part of the estate of the plaintiff’s ancestor, and which had been sold by Menier, the administrator thereof, and adjudicated to Jourdan, for whom his co-defendant, Fagot, became security; that the exchange was made to facilitate the partition and distribution of the price among the heirs; and that an error was committed in making the calculations, in consequence of which the amount of the notes given in exchange, exceeded by one thousand dollars that of the original and larger note. To be relieved from the consequences of this error, an averment was made in the answer, that it had been discovered by Menier, the administrator and vendor of the property purchased, who, in order to correct it, had paid one thousand dollars to the plaintiff. From this error the defendants sought relief; they failed to obtain it, and have appealed to this court.

The plaintiff moves to dismiss the appeal, on the ground that it was made returnable on the third Monday of December, instead of the first Monday of January following.

This is assuming a position which appears to the court untenable, viz: that the first Monday of a term is the only legal return day in it. A contrary decision was made by this court a few weeks ago, in the case of Petit et al. vs. Drane, ante 218.

The present appeal was allowed on the 25th of November, and was correctly made returnable in the month of December, being the next term thereafter, and on the third Monday in the same, because there was not sufficient time, in the opinion of the judge a quo, to prepare and send up the record, and cite the appellee in, at an earlier day.

The counsel for the plaintiff, in support of his motion to dismiss, has referred the court to the Code of Practice, article 585. 3 Louisiana Reports, 440; and also, 1 Martin’s Digest, 432, 434.

We are of opinion, that the Code of Practice, and the case from the Reports, cited, support the conclusion to which we have already come. The quotations and parts, of thq Digest relied on, do not appear to be in any respect applicable to this case. They only show, that in the Superior Court of the territory, the first Monday in each month or term, was the return day.

On the merits, it is established by legal evidence, that in consequence of an error made in the calculations, in giving new notes, they exceed in amount one thousand dollars, the original or larger note, for which they were given in exchange, and in its place, to accommodate the heirs, Toy dividing the original sum into several smaller ones. On the discovery of this error, Menier, the administrator, deposited the sum equal to it in the hands of the plaintiff, to enable him to allow, without lessening his share or doing him injury, the• deduction which the vendee would be entitled to claim.

it ls true, the plaintiff received the note- sued on m ... ... ... .. . . , . . autre, droit, i. e., in light of his wife and another heir, a minor, for whom he was tutor; but as he does not allege he paj<j ovei- any m0ney which he received for them, (and ~ , v he has most certainly not paid the amount of the present note) he is bound to correct the error, and cannot be injured thereby.

What proportion of the thousand dollars, which has occasioned this error, may be claimed on the note in suit, remains to be ascertained, and which appears to be no difficult matter. The price of the land for which the original note was given, was four thousand one hundred and thirty-five dollars thirty-three cents, and which was divided, and smaller ones including the note sued on, were given in lieu thereof.

The error of one thousand dollars against the purchaser, when he gave the smalLer notes, being admitted by the administrator- and vendor, it follows, that the aggregate amount for which the new notes were given, was five thousand one hundred and thirty-five dollars thirty-three *315cents, i. e., they were given for nineteen dollars and forty-five cents excess over the true sum, in every hundred dollars. In that proportion the note sued on is to be reduced. Its present amount being one thousand eight hundred and forty-one dollars thirty-five cents, a deduction of three hundred and seventy-eight dollars fifteen cents must be made, which leaves one thousand four hundred .and sixty-eight dollars twenty-three cents, as the true sum to be recovered.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and proceeding to give such a judgment, as in our opinion ought to have been given below, it is ordered, adjudged and decreed, that the plaintiff recover from the defendants in solido, the sum of one thousand four hundred and sixty-eight dollars twenty-three' cents, with interest at the rate of ten per cent, per annum, from the third day of August, 1834, until paid, with costs of suit in the District Court; the plaintiff and appellee paying the costs of the appeal.