The plaintiff alleges that he was married to Louisa Schmidt about seven years ago, and has ever since treated her with kindness and affection ; that in the latter part of 1850, she besought him to make her some sort of provision, in case he should die before her, to which he consented, with a view to secure his domestic quiet; that, in order to give effect to her desire, on the 1st of October, 1850, he executed a mortgage wherein he acknowledged having-made to his own order, and by him endorsed, three promissory notes, each for the sum of §8333 33 1-3, at 12, 18 and 24 months, which notes were forthwith delivered over to her by Etienne Mérano and Daniel Revoil, the common friends of the parties, with the understanding that the same might be enforced against his succession ; that, shortly after this, she deceived and betrayed him in the most outrageous manner; she became dissipated and kept close com-> pany with a certain individual named P. Massip, with whom she was seen at undue hours, and from whom she received and preserved a variety of love-letters ; that, upon his remonstrance against her conduct, she left and abandoned his house, and carried away a portion of his household effects; that all of these acts are grievous injuries inflicted on a husband’s honor, and calculated to bring him into public disgrace and contempt with his neighbors; that from *296her gross ingratitude, said donation has become null and void ; that, prompted by lucre, and with a view to make him liable for these notes, which she well knew were only intended to be used in case of his death, she combined with her brother-in-law, George Bischoff, and also with the house of Dufour, Du-rand & Go., wherein said Massip had formerly been a clerk, and fraudulently and collusively passed the same to them, although they knew full well that she had no right to do so. He therefore prays that she be cited, and that a decree of divorce or separation from bed and board be granted in his favor against her; that the donation be revoked, and the notes declared void and restored to him; that Bischoff and Dufour, Durand & Go. be also made parties to show cause why they should not return him said notes, on the grounds set forth in his petition, and on the further ground that they are not bona fide holders, not having given any consideration, and knowing also that Louisa Schmidt had no right to transfer the same, and had done so against his will. The plaintiff filed a supplemental petition alleging that Bischoff had admitted, under oath, his possession of the notes in question, one of which was placed by him in the hands of Dufour, Durand S Go. for collection in bank; and therefore prayed that said Bischoff and Dufour, Dwand & Go. be enjoined from making any disposition of said notes during the pendency of the suit.
Louisa Schmidt filed an exception, which was sustained by the District Court, that an action of divorce, or separation from bed and board, could not be cumulated with other causes of action, especially against third persons. The plaintiff, under this exception, having, by an amendment of his petition, made choice of the other cause of action and abandoned the action for divorce, she filed another exception, which was also sustained by the court, that the present action could not ho maintained against her during the existence of the marriage.
Bischoff next appeared with an exception, alleging that before he was cited, he had already instituted an action against the plaintiff to recover the amount of the notes in controversy, of which he is the true and lawful owner; that if the plaintiff had any defence to make against them, he must make the same in the Fifth District Court of New Orleans, wherein that suit is now pending. He also urged as a peremptory exception, “ that all the facts and circumstances disclosed in plaintiff’s petition for the purpose of annulling the notes and mortgage are illegal, immoral, contrary to public policy, and intended as a fraud upon the law and the public.”
The answer of Dufour, Durand <& Go., after pleading the general denial, is that they were absent and represented by their clerk, Delhoste, when on the 27th of March, 1852, P. Massip, formerly a clerk of (heirs, came to their store in company with another individual unknown to them and to Delhoste, and requested the latter to render said person the service to place in bank for collection a certain promissory note of $8838 38 1-3, which note was placed by Delhoste in the Bank of Louisiana for collection, was protested for non payment, and on the 5th of April, 1852, returned back to the same person always accompanied by P. Massip, &c. They also claimed of the plaintiff in reconvention the sum of $20,000, as damages for slander, &c. It is deemed unnecessary to notice other parties and pleadings in the cause.
After hearing the evidence and disposing of other questions involved in the litigation, the judge d quo proceeds to remark in his decision on the merits of the cause as follows: “The evidence, in my opinion, discloses an unprinci*297pled combination on the part of a wife and brother-in-law against the honor and fortune of an injured husband ; the allegations on this point are fully sustained by the evidence. Setting aside the illegality of Bischoff's title, as being derived from' a married woman, without her husband’s consent, it is manifest that Bisolioff in fact gave nothing for the notes and has no interest in them whatever, except as the means and instruments of plunder. I deem it unnecessary to recapitulate the evidence, the details of which are alike conclusive and revolting. The plaintiff is, in my opinion, clearly entitled to a judgment.” Bisolioff is appellant from that judgment.
It has been strenuously urged that the plaintiff’s action is not maintainable, because he is not permitted to set up his own turpitude. The allegations of the petition, as we have seen, do not give any sanction to such an assumption. But it is insisted that the evidence discloses the fact that_ the act was perpetrated by the plaintiff, with intent to defraud his child, issue of his former marriage. The evidence on this score does not appear to have satisfied the District Judge, and, from our own examination, we are not ready to say that ho erred in his conclusion.
The ground urged by Bisehoff, that he held the notes in controversy in good faith and for a valuable consideration, we concur with the judge d quo in his conclusion, is entirely unsupported by proof.
We do not think the District Judge erred in holding that parol evidence was admissible to prove the consideration of the notes in controversy. In the case of Klein v. Dinkgrave, 4 An. 540, the court said: “It would bo superfluous to cite authority to show with what liberality parol evidence is admitted to ascertain the equitable rights of the parties Jitigant in suits upon bills and notes.”' 6 N. S. 566; 3 L. 261; 9 R. 183. If such evidence be available to the maker of a promissory note to sustain his plea of want of consideration in an action brought against him by the holder, we can perceive no reason why it should not be equally available to the maker where he asserts his right to the restoration of his notes, as in the present case.
It is therefore ordered and decreed, that the judgment of the District Court be affirmed with costs.