
    J. P. Estebene v. Paul Estebene.
    The rale by which partial payments are to be credited is, to calculate interest on the debt to the date of the partial payment, and deduct the payment from the aggregate sum, allowing the balance to bear the stipulated interest. This rule applies only when the payment exceeds the interest due.
    APPEAL from the District Court of Jefferson, Clarice, J.
    
      J. J. Michel, for plaintiff.
    
      A. Marks, for defendant.
   The judgment of the court was pronounced by

Preston. J.

The defendant is sued upon a promissory note for $900, bearing eight per cent interest from the 1st of December, 1848, until paid. Judgment by default was rendered against him and duly confirmed. In confirming his judgment, the plaintiff gave in evidence and credited a judgment in favor of the defendant against him for five hundred dollars. He took judgment for $232 50 with eight per cent interest from the date of the judgment; also for eight per cent interest on his note, according to its tenor, to that date.

The rule which has been well settled in this court as to partial payments is, to calculate interest on the debt to the day of part payment, and deduct it from the aggregate, allowing the balance to bear the interest stipulated, if the payment exceeded the interest due. It is possible there is a very small error in the judgment, according to this mode of calculation. But the defendant should have appeared and plead his judgment in compensation, and by his aid enabled the district judge to make an exact calculation of the amount he was entitled to offset. C. P. 327, 328. He has not made the calculation for us, nor even brought his judgment up with the record to enable us to make it for him.

If there be a material error in compensating the claim against him by his judgment, after paying the judgment in this case against him, as the compensation was made by the plaintiff, the defendant not appearing, no doubt the district court would allow a rule in his behalf against his debtor, by judgment to show cause why execution should not issue for the unextinguished balance of his judgment.

The judgment of the district court is therefore affirmed, with costs.  