
    MARIGNY vs. PERRET ET AL.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT
    When the Supreme Court are not satisfied with the verdict of the jury, and judgment thereon, after an examination of the evidence, the cause will be remanded for a new trial.
    Where one of several defendants made no answer and no judgment by default taken against him, although there was a general verdict and judgment for the defendants, he will not be considered as before the court, and the judgment as to him will not be disturbed, in remanding the case for a new trial.
    This is an action by Marie Céleste Marigny, separated in bed and board from her husband, Livaudais, residing in France, against Perret & Charbonnet, merchants, and C. Papet, broker, late her agents, to sell and dispose of her sugar plantation and slaves, and all her property in Louisiana, which she charges they have done, and have failed to account and pay over a large balance, viz:_the sum of twenty thousand dollars: she prays that said defendants be com- , „ , . . pelled to render a faithful account of their agency, and pay over the sum that may be found due which she alleges to be twenty thousand dollars.
    Perret as surviving partner and liquidator of the late commercial firm of Perret & Charbonnet, answered separately for said firm; he denies ever refusing to render an account, but on the contrary he annexes to his answer an account current of the agency of said firm, in transacting the plaintiff’s business which he avers, was rendered and transmitted to her in person in the spring of 1832, which she received; he avers that said account was submitted to the new agent of the plaintiff who only objected to it on the ground that it was not signed by Papet, who was included in the procuration to said firm, and because a commission was charged; that Papet (who is the son-in-law of the plaintiff) did not refuse to sign said account at the time it was rendered, but his signature was omitted through a casualty, and it is only since the new agent has arrived, who resides with him, that he refuses to sign; he avers that errors excepted the said account contains a true and faithful statement of the accounts of the mandate to his firm, and Papet jointly; he prays that the account thus annexed be declared correct, that the commissions charged therein be allowed, and that the suit be dismissed with costs.
    Papet did not answer, and no judgment by default was taken against him. The cause on these pleadings, was submitted to a special jury who after hearing the evidence produced on the trial, returned a general verdict for the defendants.
    The district judge being satisfied with the verdict, on motion of the counsel for the defendants, rendered judgment in conformity therewith, from which the plaintiff appealed.
    This cause was argued by Mr. Henneti, for the plaintiff, and by Mr. Mazureau, for the defendants, Perret & Charbonnet. lated, and accordingly in March, 1897, mortgaged all his . .itis.ii property in Feliciana (the aforesaid negroes included) to the amount of forty thousand dollars, to secure the payment of any amount that might be owing by said firm; but he avers that any debt that was owing said firm, has since been paid off; and that on a fair and equitable settlement of accounts between said defendant and the new firm, and the said firm of W. & D. Flower, and those between the plaintiff and the defendant, that the latter will stand indebted to him (who is proprietor of all the rights and interests of the old firm by assignment) in the sum of twelve thousand dollars. He prays that Millaudon be required to render a detailed account of all his transactions with said firms, and that he have judgment against him for twelve thousand dollars, or so much as shall be found due; and that the mortgage given by the plaintiff on his slaves and all his property to secure the balance which Millaudon fraudulently and falsely represented to be due to him, be cancelled; and in order to effect a final settlement of all the accounts of the old and new firms of W. & D. Flower, that D. Flower and D. Griffith, as well as L. Millaudon, be cited to appear; and he charges that D. Flower and D. Griffith, on a fair settlement, are endebted to him in the sum of five thousand dollars, on account of the old and new concern of W. & D. Flower, for which he also prays judgment.
    
      where the supreme Court are verafcíofflie 2t ttoeorfab tion of the evidence the cause wni sé remanded for a new trial.
    Where one of several defendants made no answer and no judgment by default was taken “hough t¿e”é was ^“judgment the defendants, 110 v;11 ?ot b0 considered as before the court, and the judgment as to him will not bo disturbed, in remanding the case for a now trial.
   Bullard, J.,

delivered the opinion of the court.

In this case we are not altogether satisfied with the verdiet of the jury, and the judgment of the court below. After an attentive examination of the evidence, we are of opinion 7 r that justice requires the case should be remanded for another trial by jury. C. Papet was made defendant, but no answer appears to nave been riled bj him, nor was there judgment by default. It is left doubtful what amount of commissions the jury intended to allow to the defendants and appellees, as the account is rendered in the name of their agents, and the verdict is a general one. But as the defendant Papet is not before the court, the judgment as to him cannot be disturbed.

.It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as relates to the defendants ° Perret & Charbonnet, he annulled and reversed, that the 7 7 case be remanded for a new trial, and that the appellees pay the costs of the appeal  