¶1dissenting. Plaintiff enjoined the executory process sued out *545by defendant on her mortgage notes mainly on the ground that the act of mortgage was “ procured by fraud, misrepresentation, and falsehood.”
¶2Defendants, in their answer, changed the action from an executory process to a suit via ordinaria for the foreclosure of the mortgage. Subsequently plaintiff filed a supplemental petition praying for a trial by jury, without annexing an affidavit as required by article 494 of the Code of Practice. That article requires that in all suits on promissory notes, bills of exchange, and generally on all unconditional obligations, the party desiring a trial by jury shall “ make oath that the signature to said note or other obligation is not genuine, or that he expects to prove the same had been obtained through fraud or error, or want or failure of consideration.” ****** …
¶3The law is mandatory; it prohibits a trial by jury in a suit on an unconditional obligation, “unless the defendant shall make oath,” etc. Now, is a mortgage note less an unconditional obligation than a note without a mortgage ? A mortgage imports a confession of judgment; it authenticates the note and gives it a higher character than it before possessed. Here, then, is a suit to obtain a personal judgment on a promissory note and to have the mortgage given to secure it rendered execu-tory. Yet plaintiff insists that she was entitled to a trial by jury, notwithstanding she failed to make oath as required by article 494 of the Code of Practice.
¶4The affidavit annexed to the petition for the injunction does not affirm that the note was obtained through fraud, or error, or want or failure of consideration. It merely supports the averment of the petition that the act of mortgage was “ procured by fraud, misrepresentation, and falsehood.” This is not sufficient to obtain a trial by jury of the demand on the note, because it in no sense complies with the positive provision of article 494 of the Code of Practice.
¶5The case of Haines vs. Verret, 11 An. 122, is directly in point, and the court refused to allow a trial by jury in an executory process changed into a suit via ordinaria, on the ground that the sum demanded was an unconditional obligation, and there was no affidavit denying defendant’s signature or averring that it had been obtained through fraud, or error, or want or failure of consideration. The note is the principal obligation; the mortgage is an accessory obligation. In the face of the positive requirement of article 494 of the Code of Practice has the plaintiff the right of a trial by jury on the principardemand because of the affidavit she made in regard to the mortgage ? Which is to control, the accessory or the principal demand? It is- the general rule that the accessory follows the principal. But in the case at bar it seems to me the majority of the court is reversing this rule. But the gravest objection is, the court, by the ruling in this. case, virtually amends article 494 of the Code of *546Practice in regard to tlio right of trial by jury. This law, which is undoubtedly mandatory, prohibits a trial by jury on a promissory note “ unless the defendant make oath that his signature to said note or other obligation is not genuine, or that he expects to prove that the same had boon obtained through fraud, or error, or want or failure of consideration.” … Here no such oath has been made by plaintiff in injunction, who is defendant in this proceeding, changed into a suit to foreclose the mortgage ña-ordinaria.
¶6It is true she swore that the mortgage was “ procured by fraud, misrepresentation, and falsehood.” But the law does not say a jury trial may bo had in a suit on a mortgage note if the defendant shall swear that the mortgage given to secure the note was “procured by fraud, misrepresentation, and falsehood.”
¶7In my opinion, the terms of a mandatory law must bo complied with strictly. A conditional right ought not to be allowed, unless the party claiming it has complied strictly with the conditions prescribed by law. And the court has no authority to accept a compliance with conditions not prescribed by law as a substitute for a compliance with the conditions fixed by law. The moment the court permits the conditions precedent to be varied, or allows others to bo substituted therefor, it transcends the bounds of duty and encroaches upon the functions of the legislative department.
¶8I therefore dissent in this case.