9 Rob. 504 | La. | 1845
The defendant, sued as the drawer of a promissory note, pleaded, and, on the trial, showed, that he was a minor at the time of its execution. The plaintiff proved that the maker was engaged in trade when he signed the note, and that it was given in relation to such trade; but he adduced no evidence of his having been previously emancipated. The court below gave a judgment of non-suit. The plaintiff’s counsel moved for a new trial, and, in support of his motion, made oath that the defendant had been lawfully married more than four months before he made the note sued on, and that he (the deponent) did not remember to have been informed, as counsel, of said marriage, before the trial of the case. This motion was overruled, and the defendant appealed. He contends that this was not a proper case for a non-suit; that the judgment of the lower court was not rendered in consequence of the plaintiff’s failure to make out his case, but in consequence of the defence set up in the answer, and proved on the trial. We do not think that the judge erred. The execution of the note being admitted, and the plea of minority relied on by the defendant, it was incumbent upon the plaintiff to bring his case within the exception made by article 379 of the Civil Code, in relation to mercantile contracts entered into by minors. That article says: “ The emancipated minor who is engaged in trade, is considered as being arrived at the age of majority for all the acts which have any relation to such trade.” It was then necessary for the plaintiff, in order to sustain his action, to show not only that defendant was engaged in trade, but also that he had been emancipated when he signed the note. Replications not being-known to the practice of our courts, any facts which might have been pleaded to defeat the defence set up in the answer, may be proved on the trial. The omission of the plaintiff' to estab
Judgment affirmed.
