
    ZERINGUE vs. RIXNER.
    Eastern Dist.
    February, 1840.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Where a plea in compensation and re-eonvention, is sustained by the evidence, judgment will be given against the plaintiff for the balance due, after extinguishing his demand, with interest.
    This is an action by the endorser against the maker of a promissory note, which the former alleges he has had to pay.
    The defendant denied that the plaintiff had paid his note, but if he had, then he set up a demand in compensation and reconven'tion, which exceeded the plaintiff’s claim by two hundred and forty-four dollars, on which he was entitled to legal interest. The District Court sustained the plea, and gave judgment in favor of the defendant, against the plaintiff, for the balance, with 5 per cent, interest. The plaintiff appealed.
    
      Marsoudet, for the appellant.
    
      L. Janin, contra.
   Bullard, J.,

delivered the opinion of the court.

The plaintiff alleges he endorsed a note for the defendant, and took a mortgage, to secure him against said endorsement. He further alleges, that he has paid said note, and prays for an order of seizure and sale on his mortgage, which was granted.

The defendant made opposition on two grounds :

1. The plaintiff has furnished no proof that he has paid the note sued on.

2. That if he has paid the same, the debt is extinguished by compensation, and a balance due in reconvention, for this: that eight years ago, this opponent left in the hands of the plaintiff, the sum of eighteen hundred dollars, due him for land and slaves, purchased by the said plaintiff, on which he is entitled to ñve per cent, per annum interest, all of which remains unpaid. On this opposition, an injunction was obtained against the order of seizure and sale.

The plaintiff pleaded a general denial, and prayed that the injuction be dissolved.

There was judgment sustaining the plea in reconvention, after extinguishing the plaintiff’s demand, for the sum of two hundred and forty-four dollars, with interest at five percent. The plaintiff appealed.

It is in proof, that in the year 1830, in the settlement and partition of the succession of Zenon Rixner, the plaintiff, Zeringue, whose wife was one of the heirs, became responsible, and engaged to pay the defendant, another of the heirs, the sum of eighteen hundred and eight dollars thirty-three and two-third cents. The above balance, was the price of land and slaves, received by the plaintiff, over and above the share coming to his wife, and consequently bears interest at five per cent, from the time it was due.

The judgment of the District Court, is, therefore, affirmed, with costs.  