This is an action to recover the amount of a promissory note executed by C. Moseal, and indorsed by John Gaudin. The defense is failure of consideration.

It appears from the record that on the thirty-first of December, 1868, the defendant, Moseal, entered into a contract with the city of New Orleans, whereby he leased the Dryades Market for the term of one year, and the note sued on is one of a series given for monthly installments as the consideration for said lease. On the sixth of April, 1869, before the maturity of this noto, and before the expiration of the term •of the lease, the Mayor officially notified the defendant, Moseal, that in consequence of his failure to promptly pay one of his notes, the contract had been annulled; that Mr. Baptiste Matharon had been •commissioned to collect the revenues of the market, and the agent of Moseal was turned out and said Matharon was put in possession of the market by a police force. After this the revenues of the market were collected and paid into the city treasury by Matharon. To permit the ■city to recover in this suit would do violence to equity and good •conscience.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed, with costs of appeal.