| La. | May 15, 1834
delivered the opinion of the court.
In this case the appellant relies for a reversal of the judgment principally on a bill of exceptions to the admission of a document marked C. in the record, of a case of Maignan vs. Gleises, to prove payment of the debt sued on. The defendant’s plea was a general denial, and a small offset; and the question is, whether evidence of payment may be given without being pleaded.
We are of opinion that payment is a peremptory exception, going to extinguish the action, and which the Code of Practice requires to be pleaded. It is true that in the action of assumpsit at common law, it is generally understood that payment may be given in evidence under the plea of the general issue. But the assumpsit or promise in that form of action, is a position implied by law, from a state of indebtedness, and any kind of evidence which goes to prove that the defendant in fact owed nothing at the time of the implied promise, is admissible under the plea of non-assumpsit. But our law does not px’oceed on such subtleties, nor is it believed
Our Code of Practice has adopted the classification of exceptions from the Spanish law in force before its promulgation, except so far as they had been modified by statute. Febrero classes payment under the various names of Solu~ cion, paga, and finiquito, with the exceptions either purely peremptory or partaking of the nature of dilatory and peremptory, and after enumerating several of both kinds, he adds uy todo las que acreditan que el demandante procede sin acción por no competirle o no tenerla ya aunque la hubiese tenido. 3 Febrero JVovlsim, p. 323-4.
We think the court erred in admitting the document. In relation to the defendant Baron, we concur in opinion with the first judge, that the plaintiff has no action against him. He was surety for the defendant Faurie, as liquidator of the partnership of Maignan & Faurie, that the latter should collect the monies due to the partnership, and pay the outstanding debts. Even admitting this to be a stipulation which the plaintiff would have- had a right to accept, yet it appears that before this suit was instituted, Baron had been released from all liability as security.
The evidence in the record is not such as to enable us to do justice to the parties, without remanding the case.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, so far as it relates to the defendant Faurie, be annulled and reversed, that the case be remanded for a new trial, with directions to the judge not to admit in evidence the document G. under the present state of the pleadings, and that the defendant Faurie pay the costs of the appeal.