delivered the opinion of the court.
The defendant is appellant from a judgment'against him on his two promissory notes, and has based his hopes of relief on the following facts :
In the year 1834, he purchased from the plaintiffs twenty -city bonds, of one thousand dollars each, payable in twenty *501years, with six per cent, interest, payable semi-annually. The consideration of the sale was his five promissory notes, in one, two, three, four and five years from the date of the contract, bearing an interest of five per cent. He paid the two first notes, and part of the third.
Afterwards, on a trip to Mobile, his trunk, which contained eighteen of these city bonds, was accidentally lost, or destroyed. The present suit is for the recovery of the balance of the third and the amount of the fourth note.
On these facts, the defendant resisted the claim of the plaintiffs, by a plea of reconvention, asking the rescission of the sale, or the delivery of new bonds in lieu of those lost or destroyed, tendering security at the discretion of the court.
The defendant’s principal reliance is on the article 1893, of the Louisiana Code, which provides, that “ if the contract consists of several successive obligations, to be performed at different times, and the equivalent is not given in advance for the whole, but is either expressly or impliedly promised to be given at future periods, then, if the cause of the contract corresponding to either of the successive obligations, should fail, the obligation depending on it, will cease also. Thus, in leases for years, the obligation to pay the yearly rent ceases, if the property which is leased should be destroyed.”
The case to which this article is applicable, is that of a contract, in which the consideration fails, and we believe absolutely, as in the example given, which is that of a house taken on lease, and is afterwards destroyed.
The lease is dissolved by the loss of the thing leased. Idem., 2699. But not by its injury. Thus, if a house be destroyed by fire, there cannot be a doubt but that the lease is at an end. But if it ^e only injured-by a-conflagration, the provision in the code, article 2687, that “ the expenses of the repairs which this unforeseen event may render necessary, must be supported by the lessor,” clearly implies, that the lease is not thereby at an end. This principle is more clearly illustrated by article 2667, -which provides that “ if, during the lease, the thing be totally destroyed by an unforeseen event, the lease is at an end.” “If it be only *502destroyed in part, the lessee may either demand a diminution 0f the price, or a revocation of the lease.”
■ In the present case, the loss of the bonds cannot deprive plaintiffs of the consideration of the sale, because it does not diminish their obligation to pay the interest as it becomes due, and the capital at the time they engaged to pay it. It deprives the defendant of nothing but the facility of availing himself of his purchase by a transfer of the bonds. He may still transfer all his rights under them ; although this cannot now be done with the same ease and equal advantage. His right has been injured, but not destroyed. It still exists against the plaintiffs for the payment of the interest and capital, at the stipulated periods. The sale, therefore, cannot be rescinded.
The creditor who has lost his debtor’s bond, may, indeed, demand the amount of it, at maturity, but was never, in a court of justice, considered as authorized to demand a new one. Were we to direct the city to give new bonds, which the defendant demands^ they might be lost, and give rise to a demand for others.
He who has lost a bond, may, indeed, demand that the debtor should not avail himself of the loss, to his injury ; for no one ought to enrich himself at the expense of another. The loss must remain with the party on whom accident has placed it, and he cannot require that the party he dealt with should share it.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.