
    ALLAIN vs. PRESTON ET AL.
    APPEAL FROM THE COURT OF THE FIRST DISTRICT.-
    If there he no contestatio lites, the case will he remanded.
    In this case, an amended petition was filed by consent of parties to which no answer was put in, on default taken. In this state of the pleadings, the court a qua proceeded to trial and judgement.
    
      If there be no contestatio lites, the case will be remanáed-
   On appeal,

Martin, J.,

delivered tlie opinion of the court.

The plaintiff claimed from the first defendant the amount of a promissory note, one year’s rent of a house, due before the inception of the suit, and from both defendants in solido-, a penalty of five hundred dollars, under a clause of the lease. The general issue was pleaded.

By consent, an amended petition was filed, praying the rescission of the lease, and rent till the surrender of the premises were asked.

The plaintiff had judgement for the amount of the year’s rent and that of the promissory note, and rescinded the lease.

On an appeal we thought the District Court had erred in proceeding to trial and judgement, before an answer or judgement by default on the amended petition. We therefore reversed the judgement, and remanded the cause for further proceedings. 2 Louisiana Rep. 39.

On the return of the case, the defendants filed a plea to the amended petition, praying for its dismissal, on the ground that it changed the nature of the action, and claimed more than was due at the inception of the suit.

The District Court gave the same judgement as before, and the plaintiff appealed.

His counsel has urged in this court, that a penal obligation is valid, even when the obligee is without any interest in the performance of the principal obligation, and that judgement may be given for rents, becoming payable after the inception of the suit.

It appears to us that the same reasons which influenced n t • i ■ i».. i , i,. our lirst judgement, and induced us to remand the cause, imperiously demand the case should return. There is, as yet, no contestatio lites on the merits.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and yeversed, and the case remanded with directions to the judge not to proceed to trial till there be an answer to the amended . 1 petition, or judgment by default be taken; the appellee paying costs }n this court.

Janin, for appellant. Young, for appellee.  