BABCOCK ET AL. vs. SHIRLEY, 11 La. 73

Bullard, J., delivered the opinion of the court. This case turns mainly upon the question whether the court below erred in refusing the defendant leave to amend his answer, after having pleaded the general denial, by alleging a failure of consideration in the contract sought to be enforced.

The plaintiffs, as endorsees of a bill of exchange, sue the drawer, who at first put in the general denial, but afterwards filed an amended answer, alleging that the bill was drawn under an agreement, that the amount should be credited on a judgment against him in favor of the drawee,. but that he was afterwards compelled to pay the judgment. Such a defence, it is admitted, would avail the defendant, according to the laws of Mississippi, where the contract was made, even against an endorsee, without notice.

The amended answer was filed by consent, subject to the final opinion of the court, as to its admissibility; and the court finally ruled that the amendment was inadmissible, and judgment being rendered in favor of the plaintiffs, the defendant appealed. The appellees rely upon articles 419 and 420 of the Code of Practice, and several decisions of this court, in support of the proposition, that such an amendment is inadmissible after issue joined upon the general denial.

These articles authorize the plaintiff, even after issue joined, to amend his petition, provided the amendment does not alter the substance of his demand by making it different from theone originally brought; and the defendant, to'amend his answer, subject to the same rules, and add to it new exceptions, provided they be not of the dilatory kind. ' After the defendant has pleaded the general issue, an a-settingupTwant wií^not^b'e're’ fieived. The plaintiff costsfeven'in'an attachment suit, amicable demand shown, when one might have been made. L. C.

Duncan, on the part of the defendant, moved the court for a re-hearing, and to have the judgment corrected so as to allow the defendant his costs, as no amicable demand was proved. ' '2. This case is one of extreme hardship on the defendant, for if his supplemental answer could have been received, he has shown that the consideration of the draft had completely failed, and that he was, or is not liable. 3.

The plaintiffs, by conferring with the defendant before suit, had an opportunity to make a demand on him, which they were bound to do, although this is an attachment case, before they entitled themselves to recover costs. The code has thus restrained the discretion of courts, in relation to amendments, instead of allowing- its liberal exer- . 7 ° Clse ^01' furtherance of justice. This court has already had occasion to give an

interpretation to these articles, and .. ... , .. , , _ the question here raised must be considered as settled. In th® case of Calvert vs. Tunstall, it was held, that after the 8'enera^ denial, an amended answer setting up a want of ■ consideration, could not be received. 2 Louisiana Reports, 207. The two cases cannot be distinguished. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. ’Bullard, J., delivered the opinion of the court.

In this case, it appearing that we overlooked an exception, lhat there was no amicable demand which was made a point on the argument of the case in this court, it is ordered that the judgment first pronounced, be set aside, and the following -t -, . v xi £ rendered m lieu thereof: It is, therefore, ordered, adjudged and decreed, that the judgment of-the District Court be reversed, and proceeding to render such judgment, as ought, in our opinion, to have been given below, it is further ordered and decreed, that the plaintiffs recover of the defendant the sum of eleven .hundred and forty-seven dollars, with interest at five per cent., from the 28th April, 1835, till paid, and no amicable demand being shown, it is further ordered that the plaintiffs pay the costs in both courts.