
    
      O'CONNER vs. BERNARD.
    
    Appeal from the court of the third district
    ^he jury are not bound to say a debt is paid because a witness swears he thinks it is. protested1 the^iay^f Where an receives* aw notes from a debtor, against whom he has claims for collection as collateral security with suerotethem° gentCofa\h¡ «oulcíjon.116
   Pokteu, J.

delivered the opinion of the # ⅜ court, This is an action against the partner of o i a commercial firm, for the amount of a note . in the name of the partnership. The adefence setup in the answer is a debt due by the plaintiffs for goods sold, and an allegation, notes to the amount of $3276 47 cents were placed in the hands of one Colt, an attor- \ ney at law, and agent of the plaintiff, who was J _ authorised to receive them, and that thev have ' J never been accounted for or returned.

Tlie cause was tried by a jury, who found a verdict against the defendant for $450, The plaintiff appealed, and the defendant, in this court, has assigned errors in the judgment, which he prays to be relieved against.

The principal matter in dispute between the parties, grows out of the delivery of the notes and accounts to Colt. The appellant insists that she was not responsible for the collection of these papers, or the fidelity of the agent to whom thev were entrusted. The defendant J . contends, that Colt, duly authorised by -ii plaintiff received the notes, that there Mas latches in not collecting them, by reason of which, no recovery can be had on the note they were given to discharge; that large sums of moneys have been collected on them, which more than compensate the note sued on, and that, at all events, the plaintiff cannot have judgment against him, without, at the same time, being decreed to deliver up the, notes which her agent received as collateral security

Colt was an attorney at law. It is also proved that he was agent for the plaintiff, in collecting moneys for her, and paying debts. The note on which the suit is brought, was in his hands for collection. The receipt he gave for the notes and accounts delivered to him by the defendant,is in the following-words: “Received of Messrs. Crawford &, Bernard, by the hands of Joseph Bernard, the above mentioned notes, in amount $3276 47 cts. as collateral security on two endorsements—one of Jas. O’Conner for $800; one of James Flower for $1000, which, when collected, will go to dis, charg&s^d endorsees; the balance, a debt due Wilkins & Linton, of about $5000; the note® in the hands of Woodruff are to be received, (g¡gnec|) j j) Colt,acting for James O’Con* ner^ James Flower, and Wilkins &, Linton.”

This case, with the exception of part of the money having been collected, presents almost the same features with that of Benson rs Shipp, reported vol. 5, n. s„ The attorney was the agent of both parties: of the plaintiff, to collect the debt due by the defendant, and to receive collateral security; of the defendant, to collect the debt so assigned, and pay over the moneys to those, for whose use they were placed in his hands. There is nothing proved in evidence, which shews the plaintiff enlarged the stipulation entered into by Colt, or, that, in any respect, changes the responsibility created by the terms of jthe receipt. The defendant must, therefore, look to Colt, or h*s representatives, for the notes placed in his hands. Vol. 5,154.

But, for the money collected by Colt, we think the jury did right to allow a credit. By die terms of Colt’s agreement with the defendant, to which we think there is satisfactory evidence of the plaintiff’s assent: the money when collected was to go in discharge of her claim. As soon, therefore, as it came into the , agent’s hands, its effect in discharging the debt cannot be distinguished from a payment made in money to the attorney bythe debtor.

The defendant complains there is an error in the verdict, in not allowing credit for all the moneys received on account ofthe notes. The draft of the plaintiff, and the sum paid by Bradford, are positively proved. The witness who deposed as to the collection 'of Guilbry, only swears he thinks it was paid. As the witness could not be certain of it, we do not see the jury can be considered in error for not allowing it in Compensation.

But there is error in the verdict in not granting interest from the time the note fell due. It was protested; and by the act of 1821, bills of exchange and promissory notes carry legal interest from the day they are regularly protested for non-payment, Asls, 1821, 44.

The interest on the balance due on the note from the time it fell due, up to this timé, is $113 75 cents, which, added to $450, makes the whole amount to which the plaintiff is entitled, $563 75 cents.

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 plaintiff do recover of the defendant, the gum hve hundred and sixty-three dollars and seventy-five cents, with costs in both courts.  