
    CADE vs. LAYCOCK.
    Eastern Dist.
    
      May, 1839.
    APPEAL FROM TI1E PARISH COURT, FOR THE PARISH AND CITV OF NEW-ORLEANS.
    The Court will give judgment according to the equity and justice of the Qjise, under the pleadings and evidence.
    This is an action on a contract between plaintiff and defendant, in which the former bound himself, and so alleges in his petition, to deliver two thousand seven hundred and sixty-nine cedar logs, in the Mississippi river, at New-Orleans, at seventy-five cents per log.-; for which the latter was to pay one-third in cash, and the other two-thirds in two notes, satisfactorily endorsed, payable in sixty and ninety days, from the 30th January, 1837.
    The plaintiff alleges, that in the month of February, 1837, lie delivered said logs, agreeably to contract; but the defendant fell short in the cash payment nineteen dollars and twenty-five cents, and refuses to give his notes. Judgment is prayed in the alternative for the amount due in cash, or in well endorsed notes, as stipulated for.
    The defendant averred he had only received two thousand two buudred and fifty logs, which were all that had been delivered, and for which'he had at all times been ready to pay according to contract.
    Upon these pleadings the cause was tried. The difficulty was about the delivery of the logs. The plaintiff alleges they were to be delivered in the Mississippi, at Jfew-Orleans, and the evidence shows that the defendant agreed to receive them above the city. Some of the logs went adrift from the place above the city, which, from the allegation in the petition, the judge a quo considered as not delivered; but the defendant hadJpart of these same logs picked up below the city, and carried back to his yard, which he denied were ever delivered to him.
    The parish court, under the pleadings and peculiar circumstances of the case, deemed it most equitable to divide the difference in the quantity of logs between the parties, and make each party pay one half of the costs. From judgment thus rendered, the defendant appealed.
    
      I. W. Smith and Randall, for' the plaintiff and appellee.
    
      Preston, for'the appellant.
   Eustis, J.,

delivered the opinion of the court.

This suit grows out of a controversy concerning the delivery of a quantity of logs. Under the pleadings and evidence we are satisfied that justice has been done by the adjustment established in the judgment of the court below, which we affirm., with costs.  