
    
      ORLEANS NAVIGATION COMPANY vs. BINGEY.
    
    Appeal from the court of the first district
    He who fecou venes is considered as a plaintiff, S¿ a finding in his favor, without limitation, must be viewed as embracing his whole claim.
   Mathews, J.

delivered the opinion of the court This suit is brought to recover from the defendant the sum of $324, arrearage of rent, or interest stipulated to be paid by him annually and perpetually on the price of a lot of ground purchased from the plaintiffs.— The answer contains two exceptions to the action: 1st. That no such body corporate as the Navigation Company exists; 2d, if it does legally exist, according to the terms of its charter it has no right to acquire or hold property situated as that is which was sold to the defendant. These exceptions were overruled by the court below, and, we think, correctly.

The pleas to the action in relation to its me»-rits are a general denial and compensation to the amount of $201. The case was submitted to a jury, who found for the plaintiffs the full amount of their claim, and judgment being rendered in pursuance of the verdict, the defendant appealed.

Some time previous to the commencement of the presentsuit, the plaintiffs had instituted one to recover arrearages which were the» due, to which the defendant pleaded in compensation and reconvention, añ amount as due and owing by them to him, which exceeded their claim by the sum of $201, now pleaded ⅛ compensation. The former cause was also submitted to a jury, who found for the defendant, without stating any amount, and judgment was pronounced conformably to the verdict, from which an appeal was taken, and the judgment was affirmed by the supreme court

The defendant in the cause now under consideration relied on the former judgment, as res, judicata in his favor, for the surplus which he then claimed by way of reconvention, and requested the judge a quo to instruct the jury to this effect, which was refused, and he took a bill of exceptions. Notwithstanding the able argument of the counsel for the appellees^ made before this court in support of the district judge’s opinion, we think that on this point he erred.

In relation to the surplus which the appellant claimed in the former action against him, by his petition in reconvention, he can be viewed in no other light than a plaintiff, and the finding in his favor without limitation or restriction, must, according to several decisions of this court, be considered as embracing, the . whole amount of his claim, subject, however, to a deduction of the sum claimed by the plaintiffs in their original petition. See 4 Martin, p. 311; 5 do. p. 451 & 3d, n. s. p. 7.

>'k■-»«?; and Duncan for the plaintiffs, ¿ auu Duchanan for the defendant.

By allowing the amount offered in compensation of the sum claimed by the plaintiffs in this suit, there remains a balance due to the latter of one hundred and twenty-three dollars, for which alone, in our opinion, they are entitled to have judgment.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be avoided, reversed and annulled, and it is further ordered, adjudged, and decreed, that the plaintiffs and appellees do recover from the defendant and appellant, one hundred and twénty-ihree dollars; the appellees to pay the Costs appeal, and the appellant those of the ¿isHí-t court.  