RUSSELL vs. SPRIGG, 10 La. 421

Martin, J., delivered the opinion of the court. This is an action of lesion outre moitié. The plea is the general issue. The clerk of ¡s^'competent person, to become surety in an appeal bond, court.m ^ lesion”beyond moiety, the word technical” and does not amount to fraud, which authorizes the vendor to have ahsoiuteiyClnidi and void. The plaintiff offered an amended petition, which was rejected. There was judgment against him and he appealed.

The dismissal of the appeal is prayed, on the ground that the clerk of the District Court is the surety in the appeal bond, and it is urged, that it is made his duty by law to take the bond, and to judge of the responsibility of the surety. No law is, however, cited, constituting the clerk the exclusive judge of the responsibility of the surety in such cases as the present, nor making it his duty to take the bond. The judge may certainly take it himself, or order it t t i . to be taken., In the first case he must, and in the last he may, approve of the surety.

Indeed, an appellant apprehensive of any difficulty from the clerk, might offer his surety to the judge for his approval. In the present case, nothing shows whether the bond was taken by the judge or the clerk, and if any circumstance shows that it was improper for the latter to take it, we are not to presume therefrom, that it was not taken by the former. The appeal must, therefore, be sustained. The case is placed before us on two bills of exception; the first is, to the refusal of leave to file the amended petition, and the other, to the rejection of a witness offered by the plaintiff. I.

The object of the plaintiff, in the amended petition, appears to us to have been to change the nature of the action. It alleged that the sale was obtained through fraud, promises, and engagements, which have not been performed, and concludes with a prayer that the sale may be declared null and void. The original petition states the sale to have been effected by imposition on the part of the purchaser.

Hence we have doubted whether the amended petition, alleging fraud, and promises, and engagements not performed, might not be considered as a development only, of the charge of imposition stated in the original petition. In a charge of lesion outre moiiié, the word imposition is technical. The Louisiana Code, 1854, says this action is founded on implied error or imposition. The plaintiff in this action is not entitled to have the sale declared null and void absolutely, but to have it rescinded, unless the defendant pays the full value of the property sold. .

Actions re-racter ^frómMhe Hef'sou'dit^and an amendment which alters the substance of the original demand, m tins respect, is inadmissible, So, in an ac-trT °moiti¿n Tñ which it is ai-eftlcted'the'saie impmtion*^ an amended ^peti-alleging fraud’ ses1 ^t^wiii™ e disallowed, as changing the substance or na-*hiai action.°rl” acti°n in which fraud is charged, as well as the non-performance of the promises and engagements of the . . . * . . purchaser, the vendor is entitled to an absolute rescission or ^le sale, and the vendee cannot avail himself of the faculty of supplying the difference between the price and .the value of the premises, as in the action of lesion outre moitié.

Actions receive their character from the nature of the re^el" sought. The Code of Practice, 419, forbids amend-meriis which “ aher or change the substance of the original demand, by making it different from the one originally i i f „ ^lOUgHt. R is clear, therefore, that if different remedies are sought 4 3 ° m the two petitions, the amended one changed the substance of the demand in the original, and made it different.

It is true the first petition concluded with a prayer for the rescission of the sale, without mentioning the faculty which the defendant always has in the action of lesion outre moitié, to supply the difference between the price and the value of the thing sold. The facts presented are those that give rise, to this action, for the word imposition must be taken in the sense in which it is used in the code, i. e. the imposition which implied from' the lowness of the price.

We have no doubt that.it would have been our duty to reverse the judgment of the District Court, if, on this petition, the defen-c*arit had been refused the faculty of averting the rescission of the sale, by the payment of the difference between the price and value. On the amended petition, it is equally c^ear5 he would not have been entitled to the exercise of.this faculty. It is, therefore, evident that the District Court did , , not err in disallowing the amendment.

II- The witness whose competency was objected to, on the score of interest, is a mortgage creditor of the .plaintiff, and, under a rescission of the sale, his mortgage would attach to the premises in question, and the plaintiff is said to have no other property which could be subject thereto. This interest appears to us too remote. It depends on two contingencies, the success of the plaintiff in the suit, and the refusal of the defendant to avail himself of the faculty , of avoiding the rescission of the sale.

The argument of the defendant’s counsel assumes, that this witness is the sole or eldest mortgage creditor of the plaintiff. If the objection was ■sustained, it might be contended that the plaintiff’s judgment creditors, offered as witnesses, ought to be rejected, even when the object of the suit is not the recovery of land on which their mortgages might attach, for the judgment which he might obtain would be liable to their executions.

With nearly equal reason, simple creditors might be objected to when the solvency of the plaintiff was doubtful, for in such cases they would have an interest, or derive a benefit from the increase of his property and his means to pay his debts, if he recovered. In an aotion iortherescission count of lesion, fs ^mortgage recording of a gUage'al ^°ch to be recovered, tent to testify1™, score ofinterest.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside, and the case remanded, with directions to the judge to receive the testimony of the witness objected to; the'.appellee paying the costs of this appeal.