Legendre v. Woodrooff

Garland, J., delivered the opinion of the court. This is an action on a promissory note for three thousand seven hundred and fifty dollars, payable at the Citizens’ Bank in New-Orleans, secured by mortgage on a lot of ground. There was a judgment against the defendant, and he appealed. The defence set up in this court is, there is no evidence of a demand of payment at the bank, previous to the commencement of the suit. An examination of the record, shows there was an omission formally to offer evidence of the demand, although it seems to exist in the shape of a notarial Pl'°test attached to the record. The case was tried by a jury, ancj jn the statement of the documents offered in evidence, taken down by the clerk, he only' mentions the note and act mortgage. In the face of the certificate of the clerk, we camlot presume that the evidence of a demand of payment was made. If the record is incorrect, the plaintiff ought to have had it corrected before he fixed his cause for trial. We have to decide upon cases as they are brought before us, and r % J i n appearing that the plaintiff nas not legally proved a demand of payment at the place indicated in the note, we are comPe^ed t0 reverse the judgment. 3 Martin, N. S., 423; 10 Louisiana Reports, 552; and other cases in which the court has uniformly held, that evidence of a demand of payment is indispensable to a recovery. But in this case, we think justice requires we should not non-suit the plaintiff, but remand his case. It is, therefore, ordered and decreed, that the judgment of the District Court be annulled, avoided and reversed, and this cause remanded for a new trial, to be proceeded in according to law, the plaintiff paying the costs of this appeal.