
    MOUTON, AGENT, &C. vs. THIBODEAUX.
    APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF LA FAYETTE, THE JUDGE OF THE DISTRICT PRESIDING.
    When the plaintiff fails to make out his case clearly, he must be non-suited.
    ¡So, where it did not appear, that the person suing as agent, was really such ¡ ' and that there really was a debt due and existing in favor of the plaintiff, he was non-suited.
    This is an aclion by the plaintiff, as agent of Don Louis Thibodeaux, to recover from the defendant, Pierre Paul Thibodeaux, the amount of a note and interest, which, it is alleged, Don Louis signed, with the defendant as his surety, io Thomas Berard, for seven hundred and thirty-two dollars; and which he has had to pay.
    The plaintiffclaimed the sum of seven hundred and seventy-nine dollars and ten cents, with ten per cent, interest from the 1st March, 1836.
    The defendant pleaded a general denial; and averred, that the note sued upon is prescribed by the lapse of five years.
    The note which the two Thibodeaux’s gave to Berard, is dated the 20th July, 1830, and payable in all the month of March, 1831.
    In 1834, Berard, in two receipts endorsed on the back of the note, acknowledges to have received three hundred dollars from the defendant. In August, 1835, he commenced suit for the balance. The defendants expressly denied their signatures, which had been signed by making their ordinary marks. In May, 1836, the plaintiff dismissed his suit, on the defendants paying costs.
    At the foot of this judgment is the following receipt:
    “Received of the defendant in the above entitled suit, by the hands of A. Mouton, Esq., in notes, the sum of seven hundred and seventy-nine dollars and ten cents, in full satisfaction of the note upon which the present suit is instituted.
    March 1, 1836.
    J. BERARD.”
    
      J. Berard, the only witness examined, says “ that both the , Thibodeauxs had accounts with his father, and each one set-; tied his account. That Pierre Paul, the present defendant.^ settled his by giving his note for upwards of seven hundred* dollars, and that Don Louis Thibodeaux signed the note in. solido with him. Thinks the note was written by himself? the note in question is not in his hand-writing, but believes is, is a renewal of the first note written by him.” , j
    No part of the debt due by Don Louis, was included in the: first note written by witness. The debt due by Don Louis,? he gave a separate note for, which he exhibited in court.
    On this testimony, there was judgment for the amount of the note, with interest from March, 1831, until paid. The defendant appealed.
    
      Crow, for the plaintiff,
    urged the affirmance of the judgment, as clearly authorized by law.
    
      Voorhies, for the defendant,
    strenuously resisted payment* on the ground that there was no evidence tó show that the defendant was really indebted.
   Marlin, J.,

delivered the opinion of the court.

The plaintiff, as agent for Don Louis Thibodeaux, claims a a sum of money, which he alleges he paid for his'principal, who was the surety of the defendant, Pierre Paul Thibodeaux, and on his account.

A suit had been brought on a note signed by the principal and the defendant, on the dismissal of which, the creditor or payee acknowledged he had received from the defendant, by the hands of A. Mouton, seven hundred and seventy-nine dollars and ten cents, in full satisfaction of the note.

The plaintiff contended, this was evidence of a payment made by his principal for the present defendant. There was judgmenltagainst the defendant, for seven hundred and thirty-two dollars and twenty-five cents, with interest, at ten per cent, per annum, from March, 1831; this being the amount of the above note, with interest, from the date of its maturity.

plaintiff fails to make out his must^b^n’on-suited.

go wliere it did not appear ül?-t tho Persof suing as agent, msreally such; debt due and tiff, he was non-suited.

It is in evidence, that a former note had been given by the same parlies, in which they were bound in solido, for a sum, upwards of seven hundred dollars, due by the defendant to the payee of the note above stated; and the last mentioned note was believed, by the witness, to have been given in renewal of the former one, but of this he is not sure.

It appears to us the court erred. The payment made by Mouton, is stated to have been effected for the defendant, in the singular. But there were two defendants, and nothing shows that Mouton was, at the time, the agent of the person for whom he has brought the present suit. We must, therefore, consider the payment as made for both of the defendants. 3 r J , The plaintiff has, in our opinion, not made out his case.

Itis, therefore, ordered, adjudged and decreed, thatthejudgment of the District Court be annulled, avoided and reversed; and that there be judgment of non-suit against the plaintiff, with costs in both courts.  