The defendant being sued for the price of forty-eight hogsheads of sugai^ admits in his answer that he did agree to purchase the sugar at the price for-which he is sued, but avers that he was deceived in regard to the quality of it by the false representations of the plaintiff. The defence is not sustained by any evidence in the record. The other points relied on by the defendant, to obtain a reversal of the judgment of the Court below, are 1st. : That the plaintiff sues for the price without having delivered the thing sold. 2d. That the judgment is erroneous, because it does not decree a stay of execution until the delivery of the sugar. Neither of these points are tenable. The plaintiff offered to deliver the sugar, and placed the defendant in default by giving him a written notice to attend on the day fixed by the agreement for the delivery of the sugai’—thereupon the plaintiff’s right of action accrued to compel the payment of the price. Civil Code, Art. 2529. The right of the defendant to claim the sugar, or the proceeds of the sale of it, which it appears was made with consent of parties under order of the Court, is reserved in the judgment appealed from, and we see no reason to disturb the judgment.

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

Rehearing refused.