
    
      DUPLANTIER vs. RANDOLPH.
    
    East. District.
    Dec. 1813.
    faa^admis"»iWe Witness,
    The plaintiff claimed payment of certain lots sold by him to the defendant.
    The defendant resisted the demand, on two grounds. 1. That at, and prior to, the execution °f sale, a mortgage existed on the lots, as forming part of the fauxbourg St Mary, in favor of Madam Delor, of which he had no notice or knowledge, and which remained still unextin-guished. 2. That the lots were sold agreeably t® the plan of said fauxbourg, deposited by the plaintiff, in the office of a notary—and the said plan had been departed from, to the prejudice of the defendant, and the diminution of the value of the said lots.
    
      The defendant insisted on the following Facts, which he submitted to the court, as proper to be ascertained by the jury.
    1. Th a t the lots were warranted, by the vendor, free from all legal incumbrances whatever.
    2. That at, and prior to the execution of the deed of sale, a mortgage existed on the fauxbourg, of which these lots made a part, executed by the vendor in favor of Madam Delor, for S 84,000, of which no notice was given to the defendant, and which remained uncancelled.
    3. That the lots were sold, according to a plan of the said fauxbourg, deposited by, the vendor, in the office of the notary, in whose office the deed was executed. -
    4. That by said plan, certain advantages were held forth to the purchasers, of which, from its inexecution in some parts, and violation in other,, the defendant has been deprived, to the great diminution of the value of said lot? and his prejudice. ■
    5. Th a t the plaintiff had notice and knowledge of the violation of said plan, and permitted and authorised the same.
    The District Court decided that none of the above facts, except the two last, were proper or necessary to be submitted to the jury, and accordingly the three first were striken but.
    
      To the opinion of the court, in this respect, the defendant’s counsel excepted.
    The case being put to the jury the plaintiff in* traduced Pierre Foucfier, as a witness, who being Sworn on his voir dire, said that he Was the agent and attorney in fact of Madam Delor, the vendor of the plaintiff, and that he had been also, so far the agent or attorney of the plaintiff, as to be au-thorised to receive the money due on the two lots in the petition, to be paid over to' his said constituent,' Madam Delor: but that the authority he deriyed from the plaintiff liad ceased, prior to the institution of the present suit*—that if judgment should be rendered for the plaintiff, the money thus recovered would come to his hands, as agent find attorney in fact of Madam Delor, and that on the payment of it over, he should consider himself entitled to charge a commission thereupon against the said Madam Delor, and should thereafter charge the same, or not, as he might see proper. ^
    Whereupon, the defendant objected to the said Pierre Foucher being sworn in chief, but the objection Was overruled and an exception taken thereupon to the opinion of the court in this respect. ‘ /
    The defendant» in putting'his case to the jury, stated the first ground of his defence as laid in his petition and produced and read the mortgage granted by his vendor, the plaintiff, to Mad. Delor, and was endeavoring to shew to the jury, that he Was not bound to pay the purchase money, until the extinguishment of the mortgage thus given by his vendor to Madam Delor, and also to shew and deduce a want of notice of said prior mortgage, when the court refused to permit the jury -to be addressed upon either of said grounds, being of opinion that these matters appeared of record, and were not proper for the finding of the jury.
    T o this opinion the defendant excepted.
    Ke next produced, and offered in evidence a petition, presented by the plaintiff, to the Superior Court of the late territory for the first district, praying a meeting of his creditors, with the schedule of his property thereto annexed, in order to prove thereby the failing circumstances of the - plaintiff, and the risk the defendant was in, if he paid to him the two instalments due on the lots, before the extinguishment of the prior mortgage existing thereon.
    The Court rejected the evidence^expressing it$ Opinion that it> was immaterial, as the plaintiff’s insolvency could not affect the validity of the payment. .
    To this the defendant excepted.
    
      There was a verdict and judgment against the defendant, who appealed.
   By the Court.

This cause is to be decided on certain exceptions, taken to opinions delivered by the Judge of the first district, in the course Of the trial, before him. The suit was originally instituted, by the appellee against the appellant, in the late court of the parish and city óf New-Orleans, under the late territorial government, for the recovery of the price of certain lots, purchased by the appellant, who being dissatisfied with the judgment, appealed to the late Superior Court Of the Territory of Orleans and on the change of government, the cause remained to be determined by the court of the first district.

The first exception is to the decision of the judge below, in refusing to suffer the appellant to submit facts to be found by the jury ; a right claimed under the sixth section of the act of the legislative council, regulating the practice of the late superior courts, which remains unrepealed and is still in force. It appears that all the requisitions of that law had been complied with by the . party proposing to submit the facts to the jury, and that the Judge was rightly called upon, to determine whether they did, or did not, arise out of the pleadings.

We are of opinion, thát the three first facts are as'much'within the pleadings, as the two last, and that they ought to have been allowed to go to jury, either to have been found, separately and severally, as the law directs, for the purpose of enabling the court to render its judgment or decree, or, if the jury, as the law authorises them .to do, choose to find a general verdict, determining the law and the facts, they ought to have been permitted to take them into consideration, as constituting the principal ground of the appellant’s defence, and might have had great influence on their decision. It is certainly improper, in any case, to withhold from juries, called upon to determine disputes between suitors, any feet or circumstance, which may lawfully be allowed to . them for examination and which may influence their verdict. This court is, therefore, of opinion that the district judge erred, in striking out the three first facts tendered by the appellant, or, which amounts to the same thing, in not suffering them to be argued on by his counsel and considered by the jury.

As to the second exception, to the opinion of the judge below, in admitting Foucher to be sworn and examined as a witness, we think it correct. It does not appear that he was interested in the event of the suit, in such a manner as to render him incompetent.

e third and last exception is to the opinion Judge, in not allowing th,e appellant to give in evidence to the jury a petition of the ap-pelfee to the Superior Court of the Territory of Orleans, praying a meeting of his creditors, in. tending thereby to prove that he was in failing circumstances. This court thinks that the district judge did not err, in rejecting this testimony; believing, as he did, that it is immaterial, as, until a final surrender and appointment of syndics, it could not affect the appellee’s right to recover.

In the present situation of the cause before us, we cannot regularly notice what may be the legal effect of the incumbrance, existing on the lots purchased by the appellant, and created by the mortgage of the appellee to Madam Deior, the original proprietor of the land, on which the faux-feourg is laid Out; but the judge of the district having erred in not permitting the facts, as drawn up by the appellant to go to the jury, it is order* ed by this court, that the cause be remanded to1 the said district court, there to be again tried, with directions to the Judge to allow said facts to be submitted to the jury for their consideration and finding. ,  