
    No. 2208.
    Michael Carvin v. Philip Drumm et als.
    Plaintiff took a rule on defendant to cancel a note and erase a mortgage given to secure its-payment. Tbe defendant set up a reconventional demand for money wbicb bo was forced to pay as garnishee in a suit against tbe plaintiff in rule.. To tbis form of proceeding no exception was taken.
    Held — That the plaintiff could only be condemned to pay tbe amount on tho reconventional demand wbicb tbe defendant was obliged to pay as garnishee.
    APPEAL from the Seventh District Court, parish of Orleans..
    
      Collins, J. JE. W. Huntington, for plaintiff and appellant.
    
      Cotton & Levy, for defendant and appellee.
   Howe, J.

The plaintiff took a rule on the defendant and the-Recorder of Mortgages to have a note and mortgage held by defendant. Drumm, canceled.

The defendant, Drumm, in his answer set up a reconventional demand. No exception was made to the form of action.

The court below decided in favor of the demand of the plaintiff for the cancellation of the note and mortgage, and in favor of defendant, Drumm, on the reconventional demand, to the extent of $2000, for which j udgment was given against plaintiff. The plaintiff has appealed.

The principal item of the defendant’s claim is for money he was forced to pay as garnishee in case of Mrs. Caroline Carvin v. Michael Carvin, plaintiff at bar. We think the amount should be reduced to $1816, being the sum that defendant was actually obliged to pay, and that it should bear interest by way of arrearage, from October 27,1864.

It is therefore ordered that the judgment appealed from be amended in favor of plaintiff, by reducing the amount of the money judgment against him to $1816, with interest from October 27., 1864; that in all other respects the said judgment be affirmed, and that the defendant, appellee, pay costs of appeal.  