
    
      Amis v. The Merchants Insurance Company.
    In tllB'absence of evidence to the contrary, it will be presumed- -that’ payment'was made by' the-party bound, and not by another. •
    The fact that a party was erroneously condemned by the court of the first instance-to pay half-" the costs of the action, will not authorise a reversal of the judgment "on appeal, where no' application was made to the court below tó correct the error."
    Appeal from the Fifth District Court of New-Orleans,• Buchanan, J.-
    
      Pepper, Stockton, and Steele, for'the appellant: £. Peirce, for the defendants.
   The judgment of the'court was pronounced by-

Rost, JV

The only, question presented by the appellant, Amis, for our consideration is, whether a sum of $2,500 received'by the defendants, was paid-by the appellant for the accommodation.of- Tlleophilus Freeman, their debtor, • or- by Freeman’Jíimaélf. The"judge of the court below being of opinion that-the evidence did not satisfactorily show its payment to have been made by. the' plaintiff, gave the defendants the benefit of-his doubts, and dismissed the cláim.

A careful perusal of the evidence has satisfied us of the correctness of the’ judgment. The plaintiff did not-substantiate his allegations, and: the legal pre-sumption is that the payment was made by the party bound.

The appellant further complains that, Ke was adjudged-to pay half of the costs-in the court below, although he partially succeeded. He should have applied to-that court to correct the error, if it be one; and as he neglected to do so, it is not a sufficient ground for the reversal of the judgment. Grailhe v. Hown, 1 Annual Rep. 140.

The appellees have asked that the judgment be amended in their favor, in relation to the other matters passed upon by the court below; but we are satisfied, it has done justice between the parties.

.Judgment affirmed. 
      
       Slideuh, J. didi-not- sit- in this case, having be, u of counsel.
     