
    Sandeman v. Deake & Willard.
    Affidavits of witnesses sworn to before the clerk, not in opon court, do not constitute) that proof which is required by law.
    Clerks of courts have no authority, out of the presence of the court, to swear witnesses and [883] take down their testimony in a cause. They are only to administer oaths in open court; and out of it in cases of arrest, attachment, provisional seizure, or generally in any conservatory measure required by one of the parties to a suit.
    "Witnesses must be examined after issue joined, and give their testimony in open court, or it must be taken under a commission.
    Appeal from the court of the first district.
    This is an action to recover the balance due on a lease. The plaintiff alleges that he leased to the defendants a house or store in Oustom-house-street, New Orleans, for one year, from- the 1st November, 1888, to the 81st October, 1839, for $700, upon which he received only $175, leaving a balance of $525 unpaid. That the defendants abandoned said lease about the middle of February after its commencement, and have removed their goods and furniture. This suit was instituted the 21st of February, and the plaintiff prays for a provisional seizure and judgment for the entire balance due or to become due on the lease.
    There was judgment by default taken the 8th March, 1839. On the 13th, the plaintiff filed the testimony of two witnesses taken on affidavit, sworn to before the' deputy clerk of the court. The district judge on the filing of this testimony, confirmed the judgment for the sum claimed.
    The defendants by counsel, now for the first time appeared, and moved for a new trial on the ground that they had a good defence; were taken by surprise; that the testimony was improperly taken on which judgment was confirmed; not having been taken under a commission or in open court, but on ex parte affidavits. The motion for a new trial was overruled and the defendants appealed.
    
      Qrivot, for the plaintiff and appellee,
    maintained the following points:
    1. The lessor, when the lessee abandons the premises and violates his lease, has the right by law to institute his action and recover judgment for the [334] amount due and to become due; the testimony shows that defendants leased the store for the term of one year, and the amount of rent to be paid for the use and occupation of said store; and that they abandoned the premises in the month of February. The law obliges them to the whole amount of their contract. See Ghrisby v. Cazenave, 2 Mart. N. S. 451, and Reynolds v. Swain, 13 La. Kep. 197, and the authorities cited in the two cases.
    2. This is not an action of damages, but one for rent justly due, and defendants not having made a defence nor prayed for a jury, the article 313 of the Code of Practice does not apply. The testimony offered by plaintiff is full, complete and satisfactory, and shows the claim to be well founded.
    3. The new trial was properly refused, no ground was shown to obtain it. The laches or negligence of counsel is not a sufficient ground for a new trial. 7 La.. Rep. 252; Code of Practice, art. 360. Nor can a judgment by default confirmed be opened, in order to allow a defence to be made to the merits.
    4. Objections to the testimony given by plaintiff to establish his claim, came too late and could not be heard on a motion for a new trial.
    5. The proceedings were regular, and the delays of the law which are granted to defendants, were fully allowed in this case, and the defendants have no right to complain. See Record.
    
      I. W. Smith for the defendants.
    1. This is an action on a breach of the contract of lease. The judgment which the plajntiff has obtained is one of damages. It was illegally rendered without a jury being summoned to assess them. Code of Practice, 313.
    
      2. The plaintiff did not prove before the court below that his demand was well founded. Code of Practice, 312.
    3. There was no evidence that the property seized was subject to the privilege of said plaintiff.
    4. The judgment was rendered for a sum of money not then due. [335]
   Mokpiiy, J.

delivered the opinion of the court.

The plaintiff claims $525, being a balance due for one year’s rent of a store payable by monthly instalments; the defendants having abandoned the premises before the expiration of the lease. A provisional seizure was taken on goods removed to another store, which defendants occupied on leaving, that of the plaintiff. Ho answer having been filed, a judgment by default was entered, which was made final after the legal delays. A motion to set aside this judgment having been overruled, defendants appealed.

Several points have been made in this court by the appellants. The opinion we' have formed on one of them renders the examination of the others superfluous. They contend that the plaintiff did not prove his demand according to article 312 of the Code of Practice, when he obtained a confirmation of the judgment by default.

The record shows that no witnesses were examined either in open court, or under a commission taken for that purpose. Two affidavits were filed in the case, purporting to have been sworn to and subscribed before P. Le Blanc, the deputy clerk of the court. Admitting that these affidavits were laid before the judge when the judgment was made final, they do not, in our opinion, constitute that proof which was intended and is required by the Code. Clerks of courts have no authority out of the presence of the court to swear witnesses and take down their testimony in a cause. They are only authorized to administer all oaths required to he taken in cases of arrest, attachment, provisional seizure, &c.; and generally whenever any conservatory measure is asked for by one of the parties. 1 Moreau’s Dig. 228, sect. 5. When issue is joined in a cause, either expressly by an answer, being filed, or tacitly by a judgment by default being entered, every witness examin- [336] ed must give his testimony in open court or it must be taken under a commission. We are not aware of any good reason why the law should not he complied with in both cases. Code of Practice, arts. 360, 478 and 427. Ho legal proof of the plaintiff’s demand having been made, the judgment by default was wrongfully confirmed.

It is therefore ordered that the final judgment rendered by the district court be reversed, and that this case he remanded for further proceedings, the appellee paying the costs of this appeal.  