delivered the opinion of the court.
The defendant and appellant complains that a discontinuance was improperly refused him below.
It was proved on the affidavit of Lockett, who deposed he was employed by the intestate to defend him, and was informed by him that Chazel was a material witness in his behalf. The affiant stated the facts which the intestate said he expected to prove by this witness, and they appeared material.
A subpoena was taken out for the witness, and the sheriff returned he could not be found.
From the sheriff’s return we must conclude that he was not informed of the witness’ place of residence, or that he had none in the parish.
In the first case, the defendant was in fault in neglecting to give the requisite information to the sheriff; in the latter, his deposition ought to have been taken.
It is, therefore, ordered, adjudged andjdecreed, that the judgment of thejDistrict Court be affirmed with costs.