Same Case — On a Re-hearing.
Martin, J.This case was before us at the February term, 1840, when we reversed the judgment so far as it related to the wife, and gave ours in her favor; and affirmed the judgment as far as it related to the husband. The plaintiff and the husband solicited and obtained a re-hearing. The former has limited his pretensions to the substitution of a judgment of nonsuit to that in favor of the wife, and has relied on the case of Maddox v. Maddox, 12 La., 13; a case which differs widely from the present, the claim of the plaintiff having been recognized by the wife in her will. In the presentíase, the plaintiff has no other evidence of his claim against the wife than her note given to her husband, and by him tranferred to the plaintiff. As the husband could not have maintained' a suit upon this note, the plaintiff cannot have acquired such a right from him. Non dat qui non habet. It would be idle to give him the opportunity of a second attempt to enforce such a claim.
The husband has claimed a new trial, with the view of seeking relief at our hands against what he calls the error of the first judge, who, he alleges, erroneously refused, on the motion of his counsel, to retain the jury, who were about to leave the box for the chamber of deliberation, when the counsel came into court from an adjoin*222ing room, in which he was detained by business while the trial proceeded in the District Court. As no points were filed by this defendant, and our attention was not drawn at the first hearing of this' case to the bill of exceptions, which was taken on the judge’s refusal, it would be irregular to notice it on a re-hearing.
It is therefore ordered that the judgment heretofore rendered remain undisturbed.