The judgment of the court was pronounced by
Slidell, J.The plaintiffs sued upon a promissory note, annexed as part of tlieir petition, whicli is payable to the order of the plaintiffs, and expresses on its face to be for value received. The plaintiffs further claimed a vendor's privilege, and asked for a writ of sequestration, alleging that the note was given for goods and merchandize sold by them to the defendants. The defendants pleaded the general denial. They also pleaded that the order of sequestration unlawfully issued, prayed for its dissolution, and for damages. The court decreed the dissolution of the sequestration; and, at a subsequent hearing, the court gave judgment for the defendants as in case of non-suit, upon the ground that having alleged the consideration of the note to have been merchandize sold, the plaintiffs were bound to prove such consideration, and had failed to do so.
We are of opinion that, under the pleadings, it was unnecessary for the plaintiffs to prove the consideration, in order to entitle themselves to judgment upon the note. The allegation was only material so far as the right to a sequestration and decree of privilege was involved.
It is therefore decreed that the judgment of the court below, so far as it dismissed the sequestration, be maintained; that, in other respects, the judgment be reversed; and that the plaintiffs recover of the defendants Troxler and Billings, and of Louis N. Troxler and Charles BiUings, in solido, the sum of $417 20, with interest at the rate of eight per centum per annum from the 17th day of November, 1846, until paid; that the plaintiffs pay the costs occasioned by the order of sequestration, and that the residue of the costs in the court below, and those of this appeal, be paid by the said defeudants.