It was settled by this court last year, when the point was made before it on the previous appeal herein, that Article 1449 of the Code does not apply to this case. See 12th An., 724.

The insolvency of Normand & Woods, the makers of the notes which fell to the share of J. B. Lacour’s representatives, the plaintiffs, is sufficiently established.

It is also proved that the tutrix of plaintiffs used due diligence, with but partial success, to collect the notes of Normand & Woods.

On the 1st of April, 1840, an informal partition was made by Gasparite Lacour among his children and grand-children, of certain bills receivable in his possession, and comprising the whole of his estate ; which partition was intended, apparently, to be equal. The donor estimated at $48,000 the effects partitioned, and the shares (six in number) at $8000 each.

The bad notes of Normand § Woods fell into the share of plaintiffs; and there has arisen therefrom a deficiency, as computed by the District Judge, of $4,993 40 ; five-sixths of which he distributes among the five other shares, represented in various proportions by the defendants, leaving the other sixth to be borne by plaintiffs. This arithmetical operation is criticised by the counsel of defendants, but without reason. The result seems to be that equality in the amounts received by each co-parcenor, which it was the object of the common ancestor to establish, and of the judgment of the court to restore. The obligation of warranty, on the part of each of the co-heirs towards the other, in matters of partition, by Article 1427 of the Civil Code, extends to the solvency of the debtors of the debts partitioned.

The District Judge has concluded that the insolvency of Jarnau, whose notes, for a large amount, fell to the share of two of the defendants, has not been satisfactorily shown. And upon a review of the evidence, we are not prepared to disagree with him in this conclusion. We do not consider it necessary to review the question of interest, as prayed in the answer to the appeal.

Judgment affirmed, with costs.