Baudin v. Conway

Martin, J. delivered the opinion of the court. The heirs sued for a balance due by their ancestor, wh< was surety of Pollock, the plaintiff’s original debtor; contend ed their ancestor had paid more than he owed, and set up í [513] demand in reconvention. They had judgment, and the plaintiff appealed. Eastern District, June 1831. In a case involving accounts of forty years standing, the verdict of a jury has less weight than in other cases; because it requires operations not easily performed in a court or jury room. The executor cannot prove, that a receipt of the plain tiff for payments made by the deceased, as attorney for the defendants, embraced a larger sum than was actually paid — this would he proving a negative. Nor can he support his testimony by an account between the plaintiff and the deceased, for the defendants are no pa"’*” to it. Interest cannot he allowed in a judgment given for the balance of an account between the parties, where payments have been made for costs, andón other accounts The case was tried by a jury, who had to examine transactions of about forty years standing. In a case like this> their conclusions have less weight than in others, because it requires operations not easily performedin the court, or in the jury room. It has appeared to us, the plaintiff has clearly shewn his claim, by a judgment against Pollock, made executory against the surety, for twenty thousand one hundred and eighteen dollars twenty-two cents; and for costs against the principal and surety, two thousand one hundred and thirteen dol-ars eighty-seven and a half cents, being twenty-two thou- and two hundred and thirty-two dollars. The defendants have produced the plaintiff’s, for fifteen thousand eight hundred and fifteen dollars. The plaintiff’s receipt to D. Clark, their attorney, one thousand eight hundred and forty dollars, sixty-two and a half cents. They claim credits for the proceeds of a tract of land, of Pollock, sold by plaintiff’s, four thousand and three dollars, rnd fifteen cents, being twenty-one thousand six hundred and ifty-eight dollars, seventy-seven and a half cents. Leaving a balance due to the plaintiff, of five hundred and leventy-three dollars, twenty-three cents. The plaintiff’s counsel has attempted to reduce the credit, daimed on the receipt to Clark, by the deposition of the ex-icutor of the latter, who deposes, that the whole sum, men-ioned in the receipts, was not paid — and the deposition is at-empted to be supported by an account current,between Clark md the defendants, in which they are debited for a less sum; >ut this cannot be admitted; the executor could not prove a legative, and the account current affords no .evidence against he plaintiff, who was not a party thereto. The plaintiff has claimed interest on his judgment, and dis-mrsements for costs. This has appeared to us inadmissable [514] In the case of Saundres vs. Taylor, 7 Matrin, N. S. 14., J we reversed a judgment of the parish court, which allowed interest on a judgment — no law existing for such an allow-anee. It is therefore ordered, adjudged, and decreed, that th e judgment of the parish court be annulled, avoided, and reversed, and that there be judgment for the plaintiff for the ' sum of five hundred and seventy-three dollars and twenty, three cents, with costs in both courts.