
    
      LANE & AL. vs. DE PEYSTER,
    
    Appeal irom the court of the parish and city of New Orleans. -
    a competent witness lease."
    A surety on a bond given to re-tyfro™^9se-questration, ness.nt Wit
   Porter, J.

delivered the opinion of the court. This is an action to recover eight bales ° (>otton9 "Inch the plaintiffs allege they ship-pecj on board a flat boat, to be delivered to certain persons in New Orleans. They aver this cotton to be in the hands of the defendant, who retains it without any legal authority, and refuses to give it up.

The general issue is pleaded, and to that defence is added a special plea that the defendant purchased the property in open market» and paid for it.

The court gave judgment against the plaintiffs, and they appealed,

The only witness introduced by the plaiu-tiffs to establish the facts set forth in their petition, was the captain of a flat boat belonging to them, into whose care the cotton had been intrusted, His competency was objected to on the ground that he was giving evidence to discharge himself from the responsibility he had incurred by receiving the property, and failing to deliver it, We are of opinion, how* ever, the court below did not err in admitting ’ him. The competency of agents to testify for their principals (without a release) while acting in the ordinary course of the business intrusted to them, and where there is no charge of misconduct, or culpable negligence, raised against them, has been frequently decided in this court; and more particularly in thecaseof U. S. Bank vs. Johnson, after a full examination of the principal authorities on this subject. Vol, 5, p. 210.

On behalf of the defendant, the only testimony offered to establish the purchase of the cotton in market overt, was that of the surety on the bond given to obtain a release from the sequestration which the plaintiff had obtained at the commencement of the suit, The competency of his evidence has been brought before us by a bill of exceptions, and we are of opinion, he should not have been permitted to testify, because in the event of the cause being decided against the defendant, he became immediately and directly liable on the bond. The case cannot be distinguished from that of bail. Starkie on evidence, p. 4, 786.

It has been urged that the defendant has a right to claim a set off for moneys due by the plaintiffs to the person in whose care the cot-_ r ton was intrusted, but we see nothing in the which connects the freighter with the defendant, or that authorises the latter to be subrogated to the right of the former.

M'Caleb for the plaintiffs—Carlelan 4* Lockett for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed ; and it is further ordered, adjudged and decreed, that the plaintiffs do recover of the defendant the eight bales of cotton claimed in the petition, with costs in both courts.

Slidell for the plaintiff—Strawbridge for the defendants.  