CITY BANK OF NEW-ORLEANS vs. FOUCHER, 9 La. 405

Bullard, J., delivered the opinion of the court. In this case the plaintiff seeks Nto recover of the defendant the amount of several promissory notes, drawn- by A. Foucher, jun’r., and alleged to have been endorsed by the •defendant, which had been negotiated in the City Bank. The defendant in his answer avers, that his signature on said notes is forged and counterfeited, and that he is not liable. There was a verdict and judgment in favor of the plaintiff, and the defendant appealed. His counsel in the court relies, for the reversal of the judgment, on the following points: 1.

That the court erred in ordering the defendant’s affidavit to be struck out. 2. In refusing to appoint experts. 3. That the verdict is contrary to law and evidence: to evidence, if they meant that the signatures of A. Foucher are genuine ; to law, if they meant that defendant is bound by his acknowledgment either of the 2d or 3d May. 4. That the verdict should have been set aside because the formalities required by law were not complied with, according to the articles of the Code of Practice cited on the application for a new trial. I.

The defendant annexed to his answers an affidavit that his signatures on the notes in question, were forged and coun- . J ' to terfeited. After argument, the court ordered this affidavit to be struck out, and this act of the court is assigned as error, We are of opinion that the court did not err. Parties are sometimes permitted to make use of their own affidavits, in order to bring to the knowledge of the court such facts as are relied on as the basis of same preliminary or interlocutory proceeding.

In this case, no interrogatories were addressed , , to the defendant, the answers to which might be used as evidence on the trial. Without such interrogatories, his statement .on oath could not be used, directly or indirectly, to influence the decision of the case upon its merits.

As the court could not legally permit the affidavit to go to the jury, it was properly stricken from the record. modes ofproof of hand writing pointed§outl<by Praotice0<le are concurrent, and the court ig not required to ap-fhis*purpose,Sunless moved to do A confession draun from an unhappy parent, who is sued, by ingto1 prosecute his son for forg-to certain notes ed to the plain-him7llln°tblnd The provisions of the Code of Practice, in ar-526^ 527,’ ami others,requiring certain iorms to be pursued in the m-e1 °directory, pikncen0n"wíth them, when not time'bj^timpar-doe^not^mport-pain of nullity, II.

It does not appear by the record, that the court refused to appoint experts, or that such appointment was moved for by the appellant’s counsel on the trial. The modes of proof Provided for by the Civil.Code are concurrent, and it is not, in our opinion, assignable as error that the court did not aPP°int experts without being required to do so. III. The evidence as to the genuineness of the signatures of the defendant, was submitted to the jury, and two successive juries appear to have concurred in a verdict against them.

If the plaintiff had relied, on, or given evidence of x ' ° the admission of the defendant, made on the 3d of May, under the influence of the letters addressed to him on that day by the president of the bank, by order of the board of directors, he should not hesitate to set aside the verdict. x confession drawn from an unhappy father, by such a rr4/ ? J menace, should have no weight in a court of justice. But the letter was produced by the defendant himself, and the facts relating to this delivery were drawn from one of the plaintiff’s witnesses, on his cross-examination.

In the petition, the plaintiff set forth an acknowledgment, made the hay previously. The admission of the genuineness of the signatures on that occasion, as proved by the witness, is free from all suspicion, and the application appears to have been made to him with proper delicacy, and, without the slightest allusion to any supposed forgery.

Its effect can only be weakened by supposing that the defendant had been informed, from some other quarter, of the suspicions afloat in relation to , , , , , , . . . , his son, and that, he made the admission with a view of favoring his escape, of which there is no evidence before us. IV. motion was made for a new trial, principally on the * r r j ground that the forms required by the Code of Practice, articles 518, 522, 526, 527, and others, were not complied with.

The counsel for the defendant, in support of his motion, filed his affidavit setting forth that when the jury returned into the court room, they were not called nor count-e(h That the verdict was not written by the foreman, but partly by the clerk of the court; that after the verdict was read by the clerk, the jury were not asked if they had agreed on their verdict, but that it was recorded without any of the above formalities.

The party may require the observance of all the forms, as far as practicable, which are directed in the trial of a causej but if when present, he does not require a rigid compliance with them, and they are substantially complied with, it is not assignable as error, nor sufficient ground for a new trial. It appears that the defendant’s counsel was present when the verdict was delivered, and recorded after the amount for which the verdict was given had been filled up by the clerk, ■ and that he did not require a strict and literal compliance with the forms directed by these articles of the’ Code of Practice.

We concur with the judge of the district, that these provisions are directory, and do not impart pain of nullity. The party may require the observance of these forms so far as practicable, but if when present he does not require a rigid compliance with them, and they have been substantially complied with, we think it not assignable as error.

Article 560 makes the misbehavior of the jury a good ground for a new trial, “as when the jury has been bribed, or has behaved improperly, so that impartial justice has not been done.” This provision seems to repel the idea, that the mere non-observance of forms, such as is shown in this case, affords sufficient ground for a new trial. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.