This cause was remanded without an inquiry into the merits upon certain bills of exceptions taken by the defendant, and stated at large in the opinion of the court~ delivered by
Martin J.The counse' of the defendant and appellant has called our attention to several bills of exceptions:
1. At the trial of this case, it being necessary to prove the sale of a slave, in the year 1814, by Robinson to Walsh, a receipt of the consideration money, dated May 2~, 1830, the day of the trial was offered ub evidence. The introduction of it was opposed by the defendant; the objection overruled~ and a bill of exceptions taken.
2. After the jury were sworn, the defendant moved the court to order the striking off a supplemental petition, fiJed by the plaintift~, after the original one, without leave of the court or the defendant's consent, calling Lobdell in warranty. *221The motion was overruled and the defendant took a bill of exceptions.
A receipt of a date anterior to the contestatio li-tes is no evidence of the facts alleged by the pleadings against either of the parties to the present suit. Although no answer beput in,a supplemental petition cannot be plead withoutleave —To supply the deficiencies of a petition is to amend, and no amendment can take place in the pleadings without the leave of the court or the consent of the adverse party.3. The defendant objected to the introduction of parol evidence of the contents of a bill of sale, sous seing privé of a slave, on the ground that the loss of it was not sufficiently proven. The objection was overrulled and a bill of exceptions taken.
4. The defendant’s counsel requested the court to charge the jury, that the supplemental petition, the answer thereto, and the evidence in support of the allegations in these documents, should be disregarded by them. The court refused to give the charge, and a bill of exceptions was taken.
5. The plaintiff offered as a witness against the defendant Lobdell, called in as a warrantor. His admission was objected to — the objection overruled and a bill of exceptions taken.
1. Robinson’s receipt being of a date posterior to the con-testado lites, or issue joined, could not be evidence of the existence of the facts alleged by the pleadings against either of the parties to the suit. He ought to have been sworn and cross-examined, and the court erred, in our opinion, in receiving his receipt in evidence.
2. The supplemental petition was hied before the answer was filed; but we do not think this circumstance authorized its being filed without leave. To supply the deficiencies of a petition is to amend it, and we think no amendment can take place in the pleadings without the leave of the court, or the consent of the adverse party. The Code of Practice, 419, authorizing the amendment of the petition, “after issue joined,” has given rise to the idea, that the last three words have no meaning, unless there be some difference as to amendments before and amendments after issue joined ; and if there be, the difference is either that there is no amending before, or the amendment then requires neither leave or consent. Hence it is urged, as before issue joined *222amendments ought to be granted more easily than after, as they are then attended with less trouble and delay. We ought to adopt the latter alternative and allow amendments before, without leave or consent.
It is not too late after the jury are sworn to strike from the record documents irregularly filed. Evidence that a documented been seen among the papers of the deceased, searched for, and could not he found, and that some of the papers was lost, is not sufficient to enable the party to give parol proof of its contents. The court should charge the jury not to notice a sup plemental petition irregularly filed— ■Otherwise, if no objection be made to the introduction of evidence in sup-plaintiff?'war-ina?~ missible witness m support of the plaintiff’s title,*222We think the reasoning inconclusive. The French text of this article of the code presents the issue joined as presenting no obstacle to an amendment: ■ “ Quoiqu’il y ait contes-tation en cause, le demandeur peut se faire autoriser par le juge á amendef sa petition.” We think we give its full effect to every word of the English text, if we taire the meaning of the legislature to be, to allow amendments, with leave or consent, even after issue joined.
We are of opinion the supplemental petition was irregularly filed without leave or consent.
But the motion to strike it off was held to be too late, as the jury were sworn. We are of opinion, it was then still time, because it was necessary to remove from their consideration whatever had been irregularly put on the files off the court.
3. The loss of the bill of sale was said to have been proven by Butler, who deposed he had seen it among the papers of the deceased, either before or since the vendee’s death — that he was the vendee’s executor, and some of the papers of the estate, particularly a certificate of bank stock, was lost — That Dabney examined the papers of the estate, t'o find the bill of sale.
We are of opinion there was not sufficient evidence of the loss. Every fact sworn to, may and we believe to be true, and notwithstanding, the loss may not exist.
We think the judge erred in refusing to charge the jury not to notice the allegations in the supplemental petition. We have already said it made no part of the regular pleadings.
■ As to the evidence, in support of these allegations, it does not appear to have been objected to, and the court did not err, in refusing to instruct the juiy to disregard it.
*2235. Lobdell,the plaintiff’s warrantor,was certainly inadmissible as a witness, in support of the plaintiff’s title.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded, with directions to the . . -i.-r.i-, • i ii judge not to admit Kobmson s receipt or acknowledgment in evidence — to allow the striking off of the supplemental petition — not to admit parol evidence of the contents of the A^ 1 bill of sale, till the loss of it be better proven, nor to receive .i , , , . the warrantor s testimony m support of the title. The appellee paying costs in this court.