
    DIGGS, HOBSON & CO. vs. PARISH ET AL.
    APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT.
    The rale that a party wishing to avail himself of the confessions made by the adverse party cannot divide them and must take them entire, does not apply to the admissions made in the pleadings 5 hut only to answers to interrogatories, or to judicial conefssions.
    
    Admissions in the answer are sufficient to dispense the plaintiff with proving his demand 5 and the onus probandi lies on the defendant to establish his defence. He who pleads payment admits the existence of the debt, and must prove payment, or the plaintiff will have judgment.
    This is an action to compel the defendant, Henry Parish, to deliver up a bill of exchange, in his possession and deposited in the Canal Bank.
    The plaintiffs allege they agreed to sell the defendant a bill of exchange for $1450, drawn by Picket, Banks & Co., on •John B. Diggs, and by the payees and these petitioners endorsed, to be paid for immediately in Mississippi funds at par; and which was delivered to the defendant, who has failed to com-nlv with bis engagement; having only paid $500. They pray , . . that the hill be delivered np to them as their property, or in default thereof, that the defendant pay to them the sum of $950; and that they have a privilege on the bill or its proceeds to secure payment.
    The defendant, after pleading the general issue, admitted the purchase of'the bill and payment of $500; and for the remainder, avers he transferred, to the plaintiffs, a debt due to him by the commercial firm of E. B. Cook & Co., of Vicksburg, which he states they agreed to receive according to certain arrangements and circumstances, &c. He further shows that he has suffered damages in the sum of $1500, by the sequestration of the bill in question, which he claims in reconvention.
    Upon these pleadings and issues the case was tried.
    The plaintiffs offered no proof, but relied on the admissions of the defendant in his answer.
    The district judge, however, decided that the admissions in the answer could not be divided ; but must be taken entire; and although they admitted the purchase of the bill, they at the same time showed its payment. There was judgment against the plaintiffs, in the main suit, and in favor of the defendant for the amount of the bill, on the reconventional demand.
    The plaintiffs appealed.
    
      J. W. Smith, for the plaintiffs and appellants,
    insisted that the judge a quo erred in deciding that the admissions in the defendant’s answer, must be coupled with his statement of facts tending to show his own right to the draft sequestered. This rule does not apply to the admissions macje in the pleadings, but to answers to interrogatories only. Were it otherwise, the debtor who admits the debt and pleads payment or other matter in discharge, might require his admission and plea to be taken together. Code of Practice, art. 477.
    2. The judge a quo erred in refusing to strike out the plea in reconvention. There was no connexity, and the plaintiffs cannot be said to reside out of the state, when one of them resides in New Orleans. The amendment of 1839 is not applicable. Ads 0J. 1839)^ 164; sec_ 7>
    3. The evidence of the plaintiffs’ liability is insufficient. It was no fault of the plaintiffs that the draft was not protested. The sheriff should have had it protested. There is no proof of the acceptors insolvency.
    
      Peyton, for the appellee.
   Simon, J.

delivered the opinion of the court.

This is an action in which the plaintiffs seek to recover possession of the Bill of Exchange which was the subject of the suit of Parish vs. Hozey, sheriff, lately decided by this court, ante. They represent that on the 15th of April, 1839, they agreed to sell, to the defendant, a Bill of Exchange, &c. amounting to $1450, that said defendant did not comply with the principal condition of the contract, which was to pay the whole amount of the price thereof immediately, but only paid $500 on account of said price; and that consequently they have remained the owners of the bill. They further state that the defendant, having obtained possession of said bill, deposited the same, for collection, in the New Orleans Canal and Banking Company; that he and said bank are bound to deliver it up to them, and that, at all events, should they be unable to prove their title as owners of the hill, they are entitled to the vendor’s privilege on the same or its proceeds for the balance of said price. They pray that the defendants be condemned in solido to deliver up the bill in question, &c., and that the same be sequestered according to law.

A writ of sequestration was issued, by virtue of which the sheriff took said bill into his possession and safe keeping ; and afterwards the defendant joined issue by alleging the bill of exchange, sequestered, to be his property in consequence of his having purchased the same from the plaintiffs, and of his having-paid the price thereof, in the manner by him stated in his answer. Defendant further averred that by the sequestra-lion of tbe bill be has been deprived of the money; that in consequence of said sequestration, the sheriff failed to have it protested at maturity, and that he, (defendant, Parish) has sustained damages to the amount of $1500, which he pleads in reconvention. ' The District Court rejected, the plaintiffs’ demand, and rendered judgment against them on the reconventional plea set up by the defendant, for the whole amount of the bill of exchange ; from which judgment, said plaintiffs appealed.

No evidence whatever was adduced by the plaintiffs in support of their action; they solely relied on the-, admissions of the contract of sale and of the consideration thereof, contained in the defendant’s answer, expecting that said defendant should be required to prove the payment by him alleged; and it is now contended by their counsel that the judge a quo erred in deciding that those admissions must be coupled with the defendant’s statement of facts, tending to show his discharge, and his own right to the bill sequestered.

We cannot concur in opinion with the inferior court: The plaintiff’s action is based on an alleged contract of sale of the bill of exchange in question; the price, as they state, was $1450, payable immediately on the delivery of the bill, in current Mississippi funds to be taken at par, a part of which, ($500) was paid in -cash by the defendant, and judgment is prayed for the return of said bill or for the balance of its price. The defendant admits that he purchased the bill from the plaintiffs, and that he paid $500 in cash on account of the purchase money; but he further states, in his answer, that he paid the remainder in the transfer and assignment of a debt then due to him by the commercial firm of E. B. Cook & Co.; that the plaintiffs agreed to look to them for the said remainder; that the firm of Cook & Co. agreed and promised to pay said plaintiffs the amount due by .them to the defendant, so transferred in payment of the balance of the purchase money, and that such was the agreement at the time of the .purchase, and that the plaintiffs consented to receive a verbal transfer of said debt of Cook & Co. and the sum of $500 in full payment of tbe price of the said bill of exchange and to release defendant £rom recourse or claim against him, &c.

The rule that a party wishing to avail himseli of the confessions made by the adverse par-them'*an/must take them lire; does not apply to the ad-in the plead-to^ánswers^to interrogatories or lo judicial confessions.

The defendant having admitted the material facts alleged in , & ° . the plaintiffs’ petition as the foundation of their action, said plaintiffs had perhaps nothing to prove ; but it was clearly the duty of the defendant to establish, by legal evidence, all the other matters by him set up in his answer, going to show his compliance with the terms of sale by the payment of the whole amount of the price thereof.

The ru-'-e ^at a Party wishing to avail himself of the confes-gj0ns made by the adverse party, cannot divide them, and must . j. v take them entire, does not apply to the admissions made in the , ,. - n . • n i ot% pleadings, but only to answers to interrogatories; Code oj Jrrac-^ce> •^58 5 OT to judicial confessions made according to the 2270 of the Louisiana Code ; the reason is, with regard J ° to answers to interrogatories, that they are called for hy the other party, that they are sworn to, and that it is not to be presumed that a party would state under oath any fact which he knew to he false. But to carrv the rule further and to apply J ri J it to the matters which are pleaded hy a party in his answer in evidence of the plaintiffs’ demand, after his having admitted the debt or obligation, would, in our opinion, he a strange and absurd doctrine. It is of every day’s occurrence, in practice, that a debtor, who is sued on a contract or note, admits its existence or his signature thereto, and then set up a plea of payment or other matter in discharge of his adversary’s claim. Surely, it cannot he pretended that, in such case, the defendant would acquire his discharge from the obligation or debt sued on, because, after having spared to his adversary the trouble of proving the signature to the note or execution of the contract, he thought proper to set up a plea of payment, which is often unfounded, and sorpetimes resorted to to make a show of defence. This would he a very dangerous practice, and, to say the least of it, a very inconvenient one; as, for fear of endangering their rights plaintiffs would always think themselves hound to prove their obligations, notwithstanding the written waivers or admissions contained in the answers of their opponents. We have, however, repeatedly held .that such admissions are sufficient to dispense the plaintiffs with proving their demands, and that the onus probcmdi lies upon the defendants to establish their defence : Thus, in the case of Jones vs. Bishop, 12 Louisiana Reports, 398, this eourt said that the plea of payment admits the existence of the debt, and that, therefore, unless the defendant can prove payment, the plaintiffs will have judgment. Our jurisprudence is well settled on this subject, and the judge a quo ought to have required the defendant to prove the payment by him alleged in his answer, beyond the $500, admitted on botffsides to have been paid in cash, at the time of the purchase and if he had not done so, judgment should have been rendered against the defendant for the balance of the purchase money. However, as the defendant’s counsel, though able to establish the facts by him alleged, may have been under the impression, from the opinion of the lower court, that it was not necessary to adduce his proof in support of his defence, we think justice requires that this case should be remanded for further proceedings.

Admissions in the answer are sufficient to dispense the plaintiff with proving his demand; and the onus probantli lies on the defendant to establish his de-fence. He who pleads payment admits the existence of the debt, and must prove payment, or tile plaintiff will have judgment.

The present state of this cause makes it unnecessary to examine the questions' arising from the reconventional demand set up by the defendant, who, within our recent knowledge, having already exercised successfully his recourse in damages against the sheriff, would perhaps carry his pretensions too far, if he was again to attempt to make the plaintiffs liable for a loss for which we lately rendered a judgment in his favor against the person by whose fault it was shown to have been sustained ; 17 Louisiana Reports, 578.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court, be annulled, avoided and reversed; and that this cause be remanded for' a new trial according to the legal principles above established ; the defendant and ap-pellee paying costs in this court.  