delivered the opinion of the court. This is an action on an open account, to recover the value of goods alleged to been sold to the defendant in the year whilst both parties resided in Ireland, from whence the debtor absented himself soon after the purchase. ' r
The answer to the petition contains a general denial and plea of prescription; and in a supplement, interrogatories are put to the plaintiff, in relation to an acceptance or note of the defendant for the amount now claimed from him on open account. These interrogatories were answered by acknowledging the existence of the bill of exchange and acceptance, which the respondent declares to be lost, and that it has never been paid, «fee. After the return of the answers, the plaintiff moved the district court for, and obtained leave to, am end his petition, by alleging the existence and loss of the bill of exchange which had been accep*568ted in his favor by the defendant, and that it J had never been paid. On these pleadings, the , cause went to trial m the court below, where judgment was rendered in favor of the plaintiff, from which the defendant appealed.
The facts of the case shew clearly, that goods were purchased by the defendant from the plaintiff, to the amount claimed by the latter, and that the former had accepted a bill of exchange drawn on him for the price of said goods. The discovery of the existence of this negotiable instrument, by which the appellant is bound, ought to destroy, or at least, suspend, the plaintiff’s right to recover on the original contract of sale, unless the bill of exchange be satisfactorily accounted for; and in order to effect this purpose, the amendment to the petition, as above stated, was permitted by the court below, on a construction of the 419th article of our code of practice, which authorises amendments after issue joined, when they do not alter the substance of the demand, See.
There are many decisions of this court which fully establish the principle, that a debtor, by giving his note for money owing by him, on open account, or other contracts, does not novate the original debt; and when the *569written evidence is lost, the creditor may reco- ’ J ' ver on proof of the original contract or implied promise. A suggestion, by way of a- , .. . .. /•!, mendment to an original petition, of the loss of the written evidence, it is believed, would nofso alter the substance of the primary demand, as to exclude a plaintiff from the benefit or privilege accorded by the article of the code above cited.
In the present case a question of fact occurs in relation to the proof of loss. The only evidence to support it, is the testimony of the plaintiff, given on interrogatories put by the defendant The object of these interrogatories seems to have been to establish the existence of a bill of exchange, accepted by the appellant The answers acknowledge its existence, and proceed farther by stating its loss. By this mode of proceeding, adopted on the part of the defendant, he compelled the plaintiff to disclose facts injurious to the pursuit which he had commenced for the recovery ot the price of his goods on the original contract of sale; and being thus made competent to prove the existence of the written promise to pay, we can discover no good reassn why he shouíd not be allowed to prove the loss also.— *570His situation is analagous to that of a defendant, who is called on to acknowledge the exis-tenge a debt, which he may also declare that he has paid.
An objection is raised to the plaintiff’s right to recover, arising out of the situation in which the bill appears to have been placed priorto its loss, by the endorsement of the payee, as exhibited on the copy annexed to the protest which appears on evidence. As ,the suit is founded on the original contract, and not on the bill of exchange, we are of opinion that the cases cited in support of this objection, do not apply, and that it is not well founded in reason or law.
The court below gave interest on the principal demanded, assuming from the evidence, that the lex loci contractus authorised it; and security was not required from the plaintiff to protect the defendant against the effects of his acceptance, should it ever re-appear. In both these respects, we think the judgment of the district court to be erroneous.
The only evidence on the record with regard to interest is the testimony _of one witness, who states, that it is customary among merchants inlreland to charge interest on accounts *571ata certain rate. Now, we find the same thing practised by our merchants, but it is not audio-rised by law, and payment thereof cannot J 1 J enforced.
As to the prescription relied on by the appellant, it is clearly not supported by our laws, which, in relation to this part of his defence, must govern.
II is therefore ordered, adjudged and decreed, that the judgment of the district court? be avoided, reversed and annulled: and it is further ordered, adjudged an 1 decreed, that the plaintiff and appellee do recover from the defendant and appellant, three hundred and sixty-nine dollars and twenty three cents, with the costs of the court below; that the appellee pay the costs of this appeal; and that he shal| not be permitted to take out execution on this judgment, until he shall have given security to the satisfaction of the district court to secure the defendant, harmless, from all injury or loss which might hereafter occur to him, in consequence of his acceptance of the bill of exchange, which seems to have bean drawn on 1 him for the amount of the account now sued oa
Waits and Lobdell for the plaintiff, Preston 1 for the defendant