
    
      WARE vs. ELAM.
    
    Appeal from the court of the sixth district, the judge of the district presiding.
    Whether a defendant, who denies his signature to a promissory note, may, by admitting it at the trial, avoid the penalty?
    The purchaser, with a notice of an incumbrance cannot, on account of it, resist the claim of payment.
   Porter, J.

delivered the opinion of the court. This is an action on a promissory note which, the plaintiff avers, was secured by a mortgage on certain slaves.

The answer contains an express denial of the execution of the note; that the defendant has been anxious to pay it, and has so told the plaintiff, but that one Haden has a mortgage on the slaves, and has instituted a suit to enforce it, which was then pending; that the defendant cannot be compelled to pay, until the mortgage is released.

There was judgment against the defendant, and he appealed.

On the trial, the execution of the note was admitted.

It is questionable, whether this admission prevented the application of the penalty which the law inflicts on those who plead falsely, as to the execution of the instrument on which they are sued; but as the judgment must be confirmed on other grounds, it is unnecessary to decide the point. Code of Practice, 326.

The objection which the defendant makes to the payment of his note, on the ground of mortgage, is without any foundation, as it is proved, that, previous to the passage of the act of sale, he was informed of the incumbrance. La. Code, 2535.

In addition to the legal objection to the defence, there is another of strong equity. It is shown, that, at the time payment was demanded of the note, the agent of the plaintiff offered to discharge the previous mortgage, if the defendant would satisfy his obligation.

The plaintiff has prayed for damages. The appeal can be regarded in no other light than as taken for delay.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs, and ten per centum damages on the amount of said judgment, for a frivolous appeal.

Winn for the plaintiff, Boyce for the defendant.  