
    
      SEXNANDER vs. FLEMING.
    
    East’n District.
    
      May, 1823.
    Appeal from the court of the first district.
    The exception de non numeral pecuniâ may be made in case of an authentic act.
   Martin, J.

delivered the opinion of the court. The defendant, sued on an authentic act for payment of a sum of money, availed himself of the exception de non numeratâ pecuniâ; there was judgment for him and the plaintiff appealed.

The appellant’s counsel contends that the provisions of the Spanish law, invoked by the appellee, are repealed by our statute, which provides that the authentic act makes full proof of the agreement contained in it, against the contracting parties, their heirs or assigns. Civil Code, 304, art. 219.

The defendant urges that the exception de non numeratâ pecuniâ, (when not renounced) may be made to an authentic act, and throws the burden of the proof for the tradition of the money on the lender. Part. 5, 1, 9; ib. 3, 18, 70; Curia Phil. Paga. n. 30 ; Siguenza, 221, 223; 2 Febrero 152, n. 163, ed. of 1817; 6 ib. 297, n. 21 ; Villadiego, 47, n. 102; 5 Martin, 145, Griffin's ex'r. vs Lopez, ib. 593, Berthole vs. Mace; 6 ib. 524, Crozet's ex’r. vs. Gaudet; 10 ib. 302, Lepretre & al. vs. Sibley; Noviss. Recog. 10, 1, 22.

The exception de non numeratâ pecuniâ does not appear to us repealed by the part of the code, cited by the appellant’s counsel, the provisions of which existed under the Roman and Spanish law, which recognized the exception. It does not appear to us that the district judge erred, in sustaining the defendant’s plea.

It is said the requiring testimonial proof of that which the party, against whom the proof is to be made, attested under his own hand, is an inconvenient anomaly in those laws, which ought to be abrogated. Let this be admitted; but it cannot be denied that ancient provisions of our laws, which are established or recognized by statutes, and have for ages been respected by courts of justice, cannot be made to disappear or rendered ineffectual by the judiciary power; the constitution has forbidden its interference in such cases, and the legislature is the only competent power to apply a remedy.

Eustis for the plaintiff, Hennen for the defendant.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  