
    Pierre H. Kernion and others v. Horatio W. Hills and another.
    The amount of a judgment rendered by a court of the first instance, cannot he pleaded in compensation in another action, where an appeal taken from the judgment is yet undetermined.
    Appeal from the Commercial Court of New Orleans, Watts, J.
    
    
      
      Chinn and Canon, for the plaintiffs.
    
      G. Strawbridge, for the appellants.
   Martin, J.

This suit is brought on an account of the plaintiffs as inspectors of tobacco. They sought to probe the conscience of the defendants by the following interrogatories, viz : 1st. Are you not indebted to the plaintiffs in the sum of thirty-three hundred, thirty-seven dollars, twenty cents ? If not, in what sum are you indebted to them ? 2d. Is not the annexed account just and true? If not, in what is it unjust or false?

The answer denies any claim of the plaintiffs, and a judgment against them, in the'Court of the First District, is pleaded in compensation. In answer to the interrogatories, the defendants say, that they are not indebted to the plaintiffs in any sum whatever. They admit, that the account sued upon is correct, with the exception of the last item, which was added since ; they being unable to say, whether it is correct or not, as no marks or numbers are given. They add, that one of the plaintiffs had agreed with them, that the account should remain unclaimed, until the final decision of the suits by the present defendants against the plaintiffs in the District Court; but that, since the institution of the present suit, another of the plaintiffs stated, that the plaintiffs had withdrawn from their agreement to set off, because advised by their lawyer that it was an admission of the validity of the judgment.

The plaintiffs had judgment, and the defendants appealed. The latter admitted the correctness of the account, except as to the last item of $105, for the inspection of 173 hogsheads of tobacco. The plaintiffs propounded a supplemental interrogatory, the answer to which admits that item, for f97 20, for the inspection of 162 hogsheads. The First Judge rejected the claim for the difference, to wit: the inspection of thirteen hogsheads, or $7 80. The compensation was properly disallowed ; as the judgment offered to be set off was appealed from, and not yet acted upon in this court. Besides, the agreement to compensate was not proved, it being only shown that it was agreed, that the plaintiff’s claim should remain suspended until the final decision of said judgment.

Judgment affirmed.  