In the District Court of Louisiana, the defendant pleaded the
plea of reconvention, which is authorized by the Code of Practice
of Louisiana. The district court, on the motion of the plaintiffs,
ordered the plea to be stricken off. The Code of Practice of
Louisiana was adopted in Louisiana by a statute of that state
passed after the Act of Congress of 26 May, 1824, regulating the
practice of the District Court of the United States for the Eastern
District of Louisiana, and the practice according to that code had
not been adopted as part of the rules of practice of the district
court when the plea was stricken off.
Held that the plea
was properly stricken out.
Where a deed of trust was made to secure the payment of certain
promissory notes in an action upon the deed, the notes may be read
in evidence to prove the amount of the debt intended to be secured
by the deed without the notes having been assigned by the payees to
the plaintiffs, the trustees in the deed.
The general rule is that the allegations in the answer or plea
in an action and the proof must agree. Where there were no
averments in a plea to authorize the proof offered by a defendant,
it was properly rejected by the court.
In Louisiana, when a contract having subscribing witnesses to it
is proved to have been made out of the state, the state courts
presume the witnesses reside at the place where the contract was
made and are not subject to process issued out of those courts.
They therefore allowed secondary evidence to prove the contract.
This being the settled doctrine of the Supreme Court of Louisiana,
the District Court of the Eastern District of Louisiana properly
admitted evidence of the handwriting of the witnesses to a deed of
trust, which had been executed out of Louisiana, to go to the
jury.
There is a material difference between the laws of New York and
those of Louisiana in relation to the dignity of instruments in
writing. Contracts made before a notary and two witnesses, called
authentic acts, are, by the laws of Louisiana, elevated above all
others. A contract under seal does not appear to be of greater
dignity in Louisiana than one without seal, and those who sue in
the courts of that state must abide the consequences of these
rules. The validity and interpretation of contracts are to be
governed by the laws of the country where they are made, but the
remedy roust be according to the laws of the country where the suit
is brought.
MR. JUSTICE McKINLEY delivered the opinion of the Court: :
The defendants in error commenced their suit by petition in the
court below upon a deed of trust executed by Wilcox, one of the
plaintiffs in error, in the State of New York by which he
covenanted, among other things, to pay to the defendants in error
the sum of twenty-five thousand two hundred and six dollars and
eight cents, being the amount of certain promissory notes mentioned
and enumerated in said deed of trust, payable to several persons in
the City of New York. Others, to-wit, James B. Hulin, Alfred
Hennen, and E. V. Jourdain, were made defendants to the suit for
the purpose of subjecting money in their hands belonging to Wilcox
to the payment of the debt sued for, according to the mode of
proceeding in Louisiana. Wilcox pleaded a general denial, and the
plea of reconvention, claiming damages of the plaintiffs below for
breaches
Page 38 U. S. 379
on their part of the covenants in the deed of trust, to be set
off against the amount sought to be recovered against him.
At the trial, the court ordered the plea of reconvention to be
stricken out, to which Wilcox excepted. This plea is authorized by
the Louisiana Code of Practice, which was adopted by statute
subsequent to the passage of the Act of Congress of 26 May, 1824,
regulating the practice in the District Court of the United States
for the Eastern District of Louisiana, and which at the time of the
trial had not been adopted as a rule of practice of that court. It
being a plea not authorized by the rules governing the practice of
the court, it was properly stricken out.
Three other bills of exceptions were taken at the trial to the
rulings of the court. By the first it appears the plaintiffs
offered to prove the signatures of the defendant Wilcox and of the
plaintiffs to the deed sued on. The defendant, Wilcox, objected to
this evidence because it appeared by the deed that there were two
subscribing witnesses to it. But the court overruled the objection
and admitted the evidence upon the ground that as the deed was
executed in the State of New York, it was fairly presumable that
the subscribing witnesses resided there, and which was a sufficient
reason for letting in secondary evidence to prove the execution of
the deed. When a contract is proved to have been made out of the
State of Louisiana, having subscribing witnesses to it, the state
courts presume that the witnesses reside at the place where the
contract was made, and are not subject to the process of the court.
They therefore allow secondary evidence to prove the execution of
the contract. 7 Martin's N.S. 542; 8 Martin N.S. 379; 12 Martin
539. This being the settled doctrine of the Supreme Court of
Louisiana, the court below very properly permitted the evidence to
go to the jury.
But it is contended by the plaintiff's counsel here that, the
contract having been made in the State of New York, it ought in all
respects to be governed by the laws of that state. There is a
material difference between the laws of New York and those of
Louisiana in relation to the dignity of the instrument sued on in
the court below. Contracts made before a notary and two witnesses,
called authentic acts, are by the laws of the latter state elevated
above all others. A contract under seal does not appear to be of
greater dignity there than one without seal. And those who sue in
their courts must abide the consequences of these rules. The
validity and interpretation of contracts are to be governed by the
laws of the country where they are made, but the remedy must be
according to the laws of the country where the suit is brought.
33 U. S. 8 Pet.
361.
By the second of these bills of exceptions, it appears the
plaintiffs offered to read the notes included in the deed of trust
as evidence of the amount of debt due from the defendant Wilcox, to
which he objected because they had not been assigned to the
plaintiffs by the payees. The objection was overruled by the court
and the notes
Page 38 U. S. 380
read to the jury. If the action properly lay upon the deed of
trust, to which there appears to have been no objection made, it
was proper that the notes, which were included in the deed and made
a part of it, should have been read to the jury. The third and only
remaining exception is to the offer on the part of the defendant to
prove, under the plea of general denial, a violation of the
contract sued on by the plaintiffs before the commencement of the
suit; and a failure, on their part, to comply with its
stipulations. This evidence was objected to by the plaintiffs, and
excluded from the jury by the court. The general rule is that the
allegations in the answer or plea and the proof must agree, and as
there were no averments in the plea to authorize the proof, it was
properly rejected by the court. From the best consideration we have
been able to give to this case, it seems to us there is no error in
the record and proceedings of the district court. The judgment is
therefore
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of Louisiana and was argued by counsel. On consideration
whereof it is ordered and adjudged by this Court that the judgment
of the said district court in this cause be and the same is hereby
affirmed with costs and damages at the rate of six percentum per
annum.
