Daily clarion and standard., 1866-06-05
DECISIONS OF THE HIGH COURT
OF
ERRORS AND APPEALS.
AT THE APRIL TERM. 1866
Reported Expressly for Ihe HississiPPl
Clarion and standard

- u5NiNC A~AANtA-
The declarations in this case IS up
on a promisory note The defendant
pleaded the general issue, and at a
subsequent term filed two special pleas
as pleas puis dqrein continuance. The
first of these AYERS that the note sued
on was given in payment Of land IN
Louisiana, and that prior to the max
ing Of the note the plaintiff had execu-
ted bond, copy of which Is filed
and prayed to be made part OF the
plea, which instrument the defendant,
a non resident of the State OF LOUIS
lana, and ignorant of its laws under
stood and supposed to be properly
drawn and executed in accordance
with the laws of said State; that after
the last continuance OF this cause, he
ascerained that said instrument was
not executed or drawn in accordance
with the peculiar laws of said State, IN
that it was not signed by both parties,
nor registered as is required by said
laws, and IS, therefore, void, and that
consequently the consideration Of said
note hal failed.
The second of said suecial pleas
merely AYERS that after the last cOntin-
uancc the plaintiff refused to give pos
session of the said land to the defend
ant, although requested so to do, and
retains the same for his own benefit
and profit
The agreement, called q title bond, a
copy Of which is filed with, and prayed
to be taken as a part of the first plea, is
in the ordinary form of bond for ii
tie, except that it is not sealed, and Do
zier thereby bound himself in a penal
ty, by the first of February, the day of
the maturity Of the note sued on, up
on the request of Lee, and payment OF
the purchase money, to convey the
land to the latter.
The plaintiff demurred to both pleas,
and the demurrer was sustained, where
upon jury was impanneled to try
the issue, and verdict and judgment
were given fer the plaintiff.
Both these special pleas were bad.
/ The first contained no matter that
could be pleaded paiS darejn coHtinu-
ance. The office of such a plea is to
/ set up a matter of defence arising af-
/ ter the last continuance, not one which
/ existing before, has just come to the
/ knowledge of the party. The facts
| pleaded in this case were concurrent
with the execution. of the agreement
and were necessarily within the knOwl
| edge of the defendant But he alleges
that he had only, since the last cOntin-
uance, ascertained the law of Louis
lana on the subject. That, however
! does not alter the case The matter:
relied on, that is, the want of his OWE
/ signature to the contract, and the fail
ure to register it, are not facts that oc
CURED after the last continuance, and
therefore, cannot be pleaded.
We have no idea that the plea states
correctly the law of Louisiana
papicable to such 4 case, OF
that any court in our sister
State would hold tLis agreement to be
void between the parties for the reason
assigned The cases cited serve to &C
only to the extent, which commands
our full approval, that where the agree
ment contains stipulations on boil
sides, and is obviously intended to bt
executed by both parties, the signature
of one party will not be binding OF
him, until the other party signs also
Each party signs on the tacit cOndi
ton that all the other parties will sign
and that until the final assent is given
there being no concurrence of differ
ent minds, any one may retract (Her
riot VS. Broussard, 4Martin n. S. 2GO
Syndic of McManus VS.. Jewitt, 6 Lou
isiana R. (by Curry,) 530.) IN tn,
present case the stipulations of tn,
two parties were contained in separat,
instruments. One signed the note fo
the purchase money, and the other til,
agreement to convey when the MONEY
should be paid, and it could be NJ
more essential that both should sigl
the agreement for title, than that boil
should sign the note for the money
Furthermore the supposed defects ar
the omission of the defendant himself
and could at any time have been sup
piled by him.
1t is very clear that the promise tt
pay the money and the agreement t
convey the land, are mutual and de
pendent agreements, and that neithe
party can compel performance by tn,
other, without first offering to perform
his own part Before the defendan
could avail himself of the supposed
invalidity of the agreement as a de
fence to this action, he should hav,
offered to pay the money, and demand
ed a conveyance of the land On the
other hand if the proper defence wer,
made, it is equally manifest that tht
plaintiff could not recover on the not,
against the defendant, without show
ing aprevious tender of proper deco
conveying the land. and a demand o
the purchase money.
! The second special plea does no
shew any thing in relation to the con
sideration of the note or connect it il
any way with any land, but only al
! leges that since the last continuanc,
the plaintiff has refused to give pos
session of the said land" not stating
what land or giving any reason why
possession ought to have been deliy
cred. Every plea must be correct ane
perfect in itself and must contain suf1i
clent matter to bar the action, and can
not be made to depend on facts STATED
in other pleas. Each plea must stanC
or fall by itself and cannot be helped
by matter contained in another plea
unless such matter is expressly refer
red to II Chitty, 563 Willis Rep
$50. , Johns 437. , Mass. S. 43.
So writings must be set forth by prop
er averment in the plea, and according
to their legal effect and operation, anC
it is not sufficient to set them forth a
hGc 0erba, much less to append then
to plea by way of exhibits. The lat
ter is II mode of pleading adapted tC
proceedings in courts of chancery, but
finds no countenance in the simplicity
and precision inculcated by the rules
of the common law.
But if this plea had contained prop
er averments that the note sued or
was given for the purchase money OF
land, and had set out the agreement
for the title, it would still have been
fatally defective in not alleging the
tender of the money at the time when
the possession was demanded.
The demurrer was therefore proper
ly sustained to both these pleas. and
thereupon the Court ought to have
entered Judgment of responded ouste,
as required by the statute. (Rev
Code 495, Art. 110.) Instead of this
no Judgment was entered on the de.
murrer, but jury was forthwith EN-