
    
      JORDAN vs. WHITE.
    
    Appeal from the parish court of the parish and citj of Nevv-Orleans.
    An action fot go board!
    fire, ⅛⅛ Pof0lethe contents of them may be recei-
    a suit a„ «¡«⅛ í¡°aner ⅛ Tg^d witness for the defendant.
   Mathews, J.

delivered the opinion of the court. The plaintiff in this case, claims pay-merit of wages earned by him as pilot on board the steam-boat Teche. The answer of the defendant, who is part owner of the boat, ^contains three species of defence: a general denial, a plea of compensation and one in re- : convention.

. The evidence of the case, as it appears on the record, shows that services have been rendered by the plaintiff in the mariner set forth in his petition, but the testimony in relation to their duration and value is .somewhat variant. Much of the evidence offered ori the part of the defendant in support of his pleas of compensation and reconvention, was rejected by the court below, and judgment rendered in favor of the plaintiff, from which the defendant appealed,

Partnerships books are good evidence between partners.

The mate is a good witness for the Captain, in a suit against him for negligence.

In order to ascertain whether final judgment should be given on the appeal, or the cause should be remanded for a new trial, it is necessary first to examine and decide on the bills of exception which appear on the record. The two first were taken by the counsel for the plaintiff; one to the admissibility ,of any evidence on the plea in recon-vention, alleging that the right of action on which it is based is lost by prescription. This is in truth a plea of prescription, and in support of it, a principal reliance is placed do the twenty-second law, tit. 9, Part. 7. This ti-tie treats of slander libels, &rc. and does not in our opinion embrace the cause of action set forth in the reconvention of the defendant; it more properly belongs to that class of injuries done to the property of individuals known under the denomination damages, Daños in Spanish, and is not destroyed by prescriptions of short periods. The judge a quo was, therefore, correct in admitting evidence in support of that plea. The oilier exception of the appellee ⅛ to the admissibility of the-⅜ testimony of the witness Shaw, who was offered to prove that he had seen a receipt in the receipt book of the Teche, purporting to have been given and signed by the persons whose property was injured by the misconduct or negligence of the owners of the steam-boat, or their agents, acknowledging remuneration of the damages by them sustained, fyc. The evidence on record, establishes the fact of the destruction of the boat by fire, and also the death of the clerk who kept the books of said boat. Under these circumstances, it is believed, that oral testimony was legally resorted to, to prove the former existence of the receipt and its contents ; therefore, there is no error in the opinion of the judgement thus excepted to.

We come now to the exceptions taken on the part of the defendant. The first is to the rejection of the testimony of two witnesses offered in favor of the appellant, on the ground of incompetency, as having been part owners of the steam boat Teche, with the defendant in the present case. Their testimony seems.to have been excluded by the judge a quo, under a belief that they are incompetent on account of interest. It is true, as settled in the case of Rochelle & Shiff’ vs. Musson, reported in 3 Martin, 73, that one partner in commerce, cannot be legally received as a witness for his co-partners ,* but this role of evidence is confined to cases where their interest is common in the suit, wherein they are all to gain or lose by its event ; the rule is the same both at common law, from which we borrow much in relation to evidence, and in the Partidas. See Partidas 3, lit. 16, l. 21, In a suit by one part owner of a vessel for the portion of freight to which he may be entitled, or for damages which he may have suffered by the negligence of the master or commander, the other owners are not directly or indirectly interested in the event of such suit. It is true they might in that way support each, the others claims ; but this is a circumstance that must go to affect their-credibility, not competency, as witnesses. We are therefore of opinion, that the judge erred in rejecting the testimony of the two witnesses, L. and M. Ro-bifaille.

The next exception is to the opinion of the judge, by which he refused to admit two books of account, said to have been kept by Clifford, the clerk of the boat, who is since dead. Proof was offered of his hand writing. These books purport to show the transactions of the boat at a time when the appellee was a part owner and commander, and consequently were under his immediate care and inspection. The books of a partnership are certainly, prima facie, good evidence between the partners, and might be conclusive, unless it should be shown that the entries in them were made in error or fraud. We think the judge erred in rejecting the books offered. The third and last bill of exceptions, exhibits a question not so easy of solution as either of the others. It is to the opinion of the judge, by which Peck, the mate of the boat was allowed to testify for the plaintiff, in relation to the alleged injury done to the cargo, and for which the owners made .amends at the time when the plaintiff was captain or master.

There is a general rule of evidence, founded on the convenience of trade, that agents and servants maybe received as witnesses for .... their principals and masters, without a release Qp responsibility for apparent misconduct or negligence, where the affairs conducted by them have been in the ordinary course of business. This rule has its exceptions, one of which is, that in an action against a principal for negligence of Ills agent or servant, the latter is not competent to disprove the negligence, as the verdict might be given in evidence in an action by the defendant against the witness as to the quantum of damages, and he is directly interested to defeat the action. See Phillips’ Evidence, p. 95. According to this exception, the plaintiff, in the present case, could not have been admitted to testify for the owners of the boat in an action against them, for loss occasioned by his alleged negligence ; and if the mate be answerable over to him for the negligence complained of on the same principle, the latter is not a competent witness. But we are inclined to believe that as all persons employed in the navigation of vessels are the direct servants of the owners, in different grades of authority, on a charge of negligence against any one of them, the others are competent to prove oi disprove such negligence. The mate was, r 8 a . therefore legally admitted as a witness.—• Consequently there is no error in the opinion of the judge a quo. on this hill of exceptions.

M1 Caleb Byrnes for the plaintiff, Carleton & Lockett for the defendant.

The whole evidence of the case, as given in the trial in the court below, appears on the record, and we might proceed to give final judgment on the appeal. But as part of the testimony offered .by the defendant was improperly rejected, which if it had been admitted, might possibly have been rebutted by evidence in the power of the plaintiff; it is believed to be the safest and most proper course to pursue, to remand the cause.

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 case be remanded for a new trial, the appellee paying the costs of this appeal. ■  