
    
      DUPLANTIER vs. ST. PE'. ST. PE' vs. DUPLANTIER.
    
    East. District.
    
      July 1813.
    Conventional interest not allowed, without an actual a. greement; nor legal, before a judicial de-
    These two consolidated cases came up, from . the first District, on the following statement of _ tacts. ( ‘
    In the year 1805, the parties had some münication together, for the establishment of a sugar plantation, in partnership.
    St. Pe’ then owned a tract of land, on which one Roman had a mortgage, for about S 7,000. On the 21st. of December 1805, he bought, for the account of the intended partnership, by a private instrument, from F. Mayronne, a plantation, with all the necessary buildings, mill Sec, to make sugar, for S 35,000, payable in several instal-ments. ; and on the following day, the articles of partnership were executed. It was to begin in March following and continue for five years.
    St. Pe’ furnished to the partnership a number of working hands, who were valued at S 6,900, maktog his part-of the stock $ 21,900, including 8 15,000 for which his plantation was brought into the partnership.
    In April 1807, the private sale of the plantation was the object of a notarial one.
    On the 18th March 1807, St. Pé bought of John Gravier, a tract of land, on the partnership account, for 8 20,000. Altho’ the sale' purports to have been for ready money, yet part of the price was paid in notes, which were afterwards negotiated to Thomas Durnford, and J. B. Nico-Iet, deceased, by the vendor. v
    About the month of March 1808, Du-plantier presented to and obtained from St. Pé, the acceptance of an account of sundry advances by him made to the partnership.
    In 1807, Duplantier, purchased, for his own account, a tract of land near New-Orleans, from Mad. Delor, for 8 107,000. . On which he paid down 8 23,000 in drafts on France. In the same year, he purchased a number of negroes for 8 12,000 from P. Lanusse, whom he paid in cotton. '
    In 1811, the partnership having expired, Du-plantier presented his account of advances 'made for the, partnership, amounting to 8 105,715, and expressed, a desire, as he perhaps had done before, to purchase, the property of the partnership, and the parties being unable to settle their account, appointed arbitrators for that purpose.
    
      The arbitrators having appointed a time place to meet the parties, St. Pé’s counsel re•fused to attend.
    , In September 1811, St. Pé, who had till then lived on the plantation of the partnership, left it, and Duplantier took possession of it and conti- • . , , , p nued to occupy it, except the tract bought trom Gravier, the whole of which, was seized, and sold ( for 8 14,000 to the son of Duplantier ) to satisfy and pay to the vendor a balance of 8 3,160.
    The land, which St. Pé had brought into the partnership, was likéwise seized and sold, at the suit of his mortgagee (Roman) for 8 12,500.
    Duplantier now instituted a suit against St. Pé for 8 105,715, the amount of his advances and St. Pé, a cross suit, for 8 117,000, the value of the plantation, slaves and other property, Which, Jie contended, Duplantier had verbally agreed to purchase. . - " •
    
    The suits were consolidated, and referred to judiciary arbitrators'—before whom the parties admitted :
    That the crops of sugar, received by Duplan* tier, amounted to 8 29,7477 '
    And the melasses, sold by St. Pé, on account of the partnership, to 8 1,236. ⅝
    That there was still due the partnership a sum of S 10,268.
    That the advances, made by' St. Pé, for the ' partnership, amounted to 8 3,697, 17.
    
      That Duplantier, besides his other advances 1 ’ had paid expences of the partnership to the amount of ST000.
    Leaving, a balance due to Duplantier, by St. Pé of S 37,571, 63, including a private debt, from St. Pé to Duplantier, excluding some interest claimed by -Duplantier.
    ' In addition to these facts, the Court was referred to those stated, in the report of the judicial arbitrators.
    The arbitrators made the following report. Two questions are submitted to our decision. 1. Is Duplantier entitled to any interest, upon the payment and .advances by him made, for the partnership, or St. Pé ? 2. Is he to be consi7 dered as having kept, on his account, the property of the partnership, at the time of its dissolution ? If so, at what price ? If otherwise, how is that property to be disposed of *?
    To enable us to decide these two questions, without which the accounts of the parties cannot be liquidated, James Pitot has been introduced by Duplantier. He declares that, during the partnership, he had the management of the affairs #of Duplantier, in the city, and frequently paid the drafts of both the parties, for the account of the partnership ; and in May and June 1810, Du-plantier borrowed money from Alain and Hop- . kins, to pay partnership debts—that -Duplantier’s affairs then did not permit him to make such ad-vanees, without taking money at interest—that the witness does not precisely know, what particular debts of the partnership were so paid—that St. Pé frequently requested the witness to borrow money For the partnership—that during the absence of Duplantier, on the application of St. Pé, the witness borrowed from Villechaise S 4,780, for which he gave his own note, which Was after-wards taken up with Duplantier’s money—that to his knowledge,' the payments thus made by Duplantier, were 'one of the great causes of the embarrassment, in which his private affairs have been involved.
    On his cross-examination, this witness declared that, posterior to the contract of partnership, Duplantier bought Mad. Delor’s plantation for S 107,000, paying down S 23,000—that about the same time, viz. in 1807, he made a speculation in negroes, for his own account, amounting to $ 12,000, and in 1811, in order to settle the affairs of the partnership and liquidate his own, he desired to take the partnership’s plantation on his own account.
    Duplantier gave also in evidence, the contract of partnership, to shew that a plantation had, before its date, been purchased for the joint account of the parties : and from the account, of the severa^ payments, made by him for the partner. ship, he shewed that the price of that plantation, viz. S 45,000, was paid by him.
    It was admitted that, in June 1811, Duplan-tier took possession of the whole property of the partnership, altho’ the said partnership was not then expired : and Mayronne deposed that St. Pé, who had the management of the affairs of the partnership, had left the plantation before Du. plantier took possession of it the house then. no one being in
    St. Pe’ recurred 1. to the account of Duplan. tier, from which it appears that at, or posterior to, the time of his borrowing money from Alain and Jlopkins, no important payment was made by him, for the partnership : 2. To the contract of partnership, which contains the following clause, “ The proceeds of the crops shall be employed in discharging the obligations, which we contrae, ted with Mayronne and others, for the account of the society, and in case they should not be sufficient, each of üs shall contribute with all his means, to effect such payments, ”
    He relied on another clause by which Duplan-tier “ obliges himself besides t6 advance ten working .slaves before the time of , the roulaison : of the price of whom Sf, Pé shall not be bound to pay his half, until after the lands purchased are paid for. ”■
    
      He likewise shewed another clause by which it is agreed that “ St. Pe shall remain intrusted with the direction of all the work .relative to the plantation, sugar house &c. and shall dispose of the guildive, saw mill, 8tc. as he shall judge most convenient for the partnership. ”
    He introduced also an account settled between the parties in 1808, of the advances made by Duplantier, leaving a balance in favor of the latter of S 50,808, 07; observing that no interest was charged. - -
    He then read, seven letters addressed to him by Duplantier, dated Baton-Rouge, the 22d. and ‘ 28th. of January, 2d. and 11th. of February, 15th of April and 25th of December 1806 and 25th of May 1810.
    In the first, Duplantier tells him “ I shall send to Zacharie a power to enable you to settle with Gravier, as soon as your health will permit. I wish it finished ? ”
    In the second—“ Do not lose sight of our neighbour Gravier : do not lose a single moment in purchasing the whole. Be persuaded it is a good bargain and we would not have more than we want. If misfortunes cease to persecute me, we shall soon put forces on it. We must work at our ease: and, with terms, we shall find nb dif-ficultv to pay. I intreat you to take care of yourself. It is a folly to kill one’s self in day. Things never /go so fast as our imaginations, or - as one should wish : so do not hurt yourself by your too great activity : your wife, children and society have need of you. As to myself, I am not longer fit for any thing but advice : since you are to take all the trouble, you must take it in such a manner as to be able to support it. ”
    1st the third—“I have twenty brut negroes and two families to send to you. If you can-dissolve with Descomines, I think we shall be' able with the reinforcement I have at Mobile, to make our mills-and other works go. ”
    In the fourth—“ I was going to speak to you about Gravier.. I am glad that you have done •with him. Do not lose time before you make him pass the deed of sale : and in case that should be delayed a little, let him give a private one. I ShaU take measures to let him have the cash, on my arrival into town. I should be sorry, if you did- not make that purchase. ”
    In the fifth—“ I should be happy to see you and wish you could conclude with Gravier, if, at last he is ready.
    In the sixth—“ Do not lose sight of the bargain of Gravier, with little Durnford. See what is the true amount of the mortgage, given to him by Gravier : propose to him our note for it—if he does not accept, you must take means to have it extinguished, and procuring the same. Consult Mr. l)erhigny and Zacharie : is absolutely necessary to conclude that bargain.”
    In the seventh—“ I have learned with regret, that you have not been able to come to any settlement with Pa vie or the nephew of Ni- » - r colet.' I do not know what we shall do : as to myself I have no resource left me. I cannot procure money to pay, my private debts. ”
    St. Pe’ next introduced the depositions ’of Morier Fazende and Descomines, shewing that since the roulaison of 1810, Duplantier took and kept the possession and management of the partnership plantation. Morier Fazende states that he is well acquainted with the plantation, slaves, &c. and that the whole is worth 8 140,000, -cash.
    That of Boutté, stating that Duplantier told him that he kept the partnership plantation, on his own account.
    - That of Harang, stating that about March or April 1811, he was requested by St. Pé to make an appraisement of the partnership property, jointly with a person Duplantier should appoint. That, in consequence, he went on the plantation, examined the whole of it; as well as the greater part of the slaves—that shortly after he went with Mayronne, appointed to make the appraisement, on the part of Duplantier : but being on the spot, and unable to agree, Duplantier told them it was useless to take any more trouble, or to endeavour aSree* because, if the appraisement exceeded the sum he intended to give for the property, he would not take it. The witness valued the property then, at g 128,000, including interest, at one and two years credit, the terms he be- ' lieved agreed upon, by the parties.
    A notarial instrument, executed by the parties, on the 8th. of June, relating to the disposal of the partnership property was also offered, on the part of St. Pé, accompanied with oral testimony of Duplantier’s refusal to abide by it, and of a new verbal agreement having then taken place. The counsel for Duplantier opposing this evidence as contrary to law and practice, we, the arbitrators were of opinion that St. Pé could not be allowed to prove by witnesses, what had been said by the parties, priór to, or after the said agreement— that he must, if he produce it, let it go for what it contains. Wherefore the evidence was withdrawn. ,
    Thereupon-, Livaudais, Lanüsse and Tricoti were sworn as witnesses for St. Pé.
    Livaudais deposed that some day, about June 1811, being fixed for the disposal of the partnership property, he went on the premises, but-Duplantier produced no negroes or cattle; that the witness with Fortin, Pitot and Laronde, en-deavoured to bring the parties to a final settle* mint : and, as far as he believes it was "that Duplantier should take the whole property'. for S L05 or 108,000; but no appraisement was made.
    L a N u s s e deposed that about oné year ágo, he was commissioned by Tricou to propose tó Duplantier S 110,000 for the plantation and slaves : payable É 25,000 in March then following, and the rest in five annual instalments—^that Dil* plantier answered he wanted first to settle With $t. Pé; that the proposed terms, if accepted, could not relieve him, as the delay* he had obtained from his creditors would expire iri December théA folio wing.
    Tricou deposed he had made thé abové offer; that St. Pé had consented, but the bargain failed; ' because, out of 35 negroes which he wanted td buy, Duplantier insisted on keeping five of thd most valuable, such as the commander &c., substituting others of inferior value.
    Du p i. a n tier’s counsel contended he Was eh* titled to interest, .akho’ there was no special agree*' ment: for having been obliged to borrow money for the discharge of the partnership debts,* it would be unjust to deprive him of the interest,' Which hé Claimed át the rate of 10per cent, having paid that,* ánd a higher rate to money fenders. That in i ease like this, no positive contract Was necessary;, because the partnership having béeh benefited by the-advances he had made, it was natural he ... should be indemnified by his partner.
    ' As to the question, whether Duplantier should considered, as having taken the whole property on his own account, the counsel observed there was no evidence of any contract of that kind. Such a coijtract would be a contract of sale— there cannot be a contract of sale, without a price fixed upon.
    St. Pe’s counsel answered that interest can only be claimed, where there is a positive agreement, or where, from the acts of the parties it is evident that it was the intention of the parties it should be paid. Here it appears, from the accounts between the parties, that interest was never thought of.
    As to the other question, they contended that Duplantier was in possession as owner not as administrator of the property : and must at all events be considered as such, since the proposition of Tricou.
    They introduced by consent of, or at least without oppositionfrom, the counsel ofDuplantier, a notarial instrument, executed by the parties, ( ion the 8th. of June 1811, whereby it was agreed that Duplantier should keep the plantation, slaves, cattle, &c. of the partnership, for the sum of ⅞ 108,000. and should cede to St. Pé. ten arpents in front at the rate of , one thousand dollars the ar-pent, and eight of the slaves brought by St. Pé, into the partnership, and three of those brought by Duplantier, for the price at which they had been'charged to the partnership : the accounts of the parties shall be settled as soon as possible, and if St. Pé falls in arrear, he shall pay Duplan-tier, in the above lands and slaves, or in cash—-if Duplantier falls in arrear, he shall pay in his nqtes at one and two years, with the same interest, which St. Pé is paying.
    I. On this, we, the arbitrators are of opinion that there exists no particle of evidence that, it was t]ie intention of the parties, that interest should be paid. On the contrary, the articles ofpartnership and the account of advances, settled in 1808, shew that Duplantier had no such pretentions. We, therefore, think he is not entitled to any interest, on the sums by him paid, for the partnership, nor on those advanced to St. Pé.,
    II. We think that the instrument of the 8th. of June 1811, is binding on the parties, and that nothing said or done by them," since its date, could alter it; unless it was rescinded and the rescisión reduced to writing.
    We are of opinion that from the date of said instrument, Düplantier wrongfully detained the P088e88H>n'<)!f ⅛ -fend ceded to St. Pé, and of the three slaves, who were once his own.
    The agreement most have its complete execution. Duplantier cannot enjoy the profits of the property, and enrjch himself, at the expence of his former partner. Jure naturali equum est, neminem cum alterius detrimento locupletiorem fieri. He ought, therefore, to allow interest, at five per cent., on the value of the land and of the three slaves from the above date.
    We also think that the credit which Duplan-tier is to have on his notes, of one and two.years, to pay tlie balance due from him, ought to run from the date of the agreement. Had he not claimed interest, the accounts could have been settled without much difficulty. It is he, therefore, who-has delayed the settlement and St- Pé ought not to suffer thereby.
    Dope an tier owes to the partnership the price of the plantation and slaves 8 108,000, from which-the amount of his advances 8 59,110, 41, being deducted, he remains debtor of S 48,889, 59, to the partnership.
    : One half of this sum, Jg *24,444, 79, he owes to St,, Pé, on whom he has a private claim of 8 6,043, 65, leaving the balance due by him to that gentleman 8 18,401, 14.
    St. Pe’ is to receive the ten arpents of land for 8 10,000, the eleven negroes for 8 7,195, ieav-ing a balance of g 1,206, 14,
    
      C ⅛ x. c itl a t i n g the mterpst, at S per, cent. thereon and on the value of the plantation,, and of the three slaves that were Duplantier’s formerly:
    We adjudge that Duplantier shall; deliver tp Pé, the ten acres of land and three slavey : ' aforesaid, and St. Pé shall retain the eight slaves by him formerly put into partnership, and Pur plantier shall pay him 8 2,204, 33 viz. 8 1,540, 95 in cash and 8 663 37, in his note payable oa the 8th. of June 1814.
    The District Court, on this report made ihf following decree.
    The arbitrators were correct, in admitting as evi, dence the contract between the parties of the 8thl of June 1811. It is not a project, but an abso* lute contract, and vests an unqualified right, in the parties, to the property reciprocally conveyed; leaving all other matters in difference subject to after liquidation. It properly forms the basis of their award.
    By the contract, it is stipulated that, if on a lir quidation of the accounts, it turns out that St, Pé is in arrear to Duplantier, he shall pay in th£ lands and negroes ceded him, or in cash. But if Duplantier should be indebted, he shall give his notes payable in one and two years, with thp same interest, which. St. Pé himself pays. But whether any, and what interest St. Pé pays,⅛ not . shewn : it being conventional. -
    
      ..¶⅛⅛ arbitrators have erred ¡hallowing interest' ” from the date of the contract of the 8th of June 1811. for by this contract, if Duplantier should be found indebted to St. Pé, upon a liquidation of the accounts, he was to give his notes, at one and two years, with .the interest which St. Pé pays. This evidently relates to the time of liquidating the accounts, and not to the date of the contract. If Duplantier (as the arbitrators alledge) has prevented an amicable adjustment of the accounts, it was in the power of St. Pé, to compel a.liquidation, by resorting, as he has done toa Court of justice, and he ought to recover interest, only from the time of the judicial demand, and on the amount, which may be finally liquidated and adjusted by,the Court..
    The arbitrators also erred in allowing interest on the price of the tep acres of land, and the ne-groes mentioned, in their award : because by the contract St. Pé had a right to enter upon the land and take possession of the negroes, ceded to him by the contract; at least until the liquidation of their accounts : and then, in case he should be debtor, he had an option to pay in land, negroes or money. . If Duplantier wrongfully kept him oiit’ of possession, his remedy was an action'for damages, equivalent to the injury sustained.
    The i;ate of.interest assumed cannot be the proper measure of damages for the wrongful detention of the property. The arbitrators have gone out of the submission in making this allowance.
    This being disallowed there remains a balance in favour of St. Pé of S 1,206, 14, to be paid in two annual instalments, with interest to run .... ... ' from the judicial demand, which is adjudged and decreed to him with costs.
    From this decree Duplantier appealed.
    
      Duncan for the appellant.
    We have proved that we have frequently taken money, at interest, to pay the debts of the partnership, and that our situation did not allow us to make advances otherwise. We have paid for the greater; part of the land, composing the joint stock of the partnership.; we have put on it a much larger number of slaves, than we were bound to do. These lands and ne-groes have all produced great advantage to the partnership. Without them, no crop could be made. With what money have-those lands1 and negroes bfeen paid for ? With that very money, which we have borrowed at very high interest. The enormous payments we have been obliged to make for the partnership, have been the cause of the embarrassment in our private affairs—It has compelled us to stop our paj>ments, and to ask a respite from our creditors. How, in justice or equity, can the defendant refuse to indemnity for sacrifices, the advantage of which he jias reaped?
    
      WÉ eanñot be considered; ás having kept the property of the partnership on our account. Our articles of partnership provide that, at its dissolution, án appraisement of the partnership property ori hand shall be made, and any of the parties shall be at liberty to take it as thé appraised value. Has suc^ an appraisement been made ? It is in vain that it is alledged that since June 1811, we have been in possession of the joint property and that We have agreed to keep it, ‘for a certain price. That price was never fixed, or agreed upon between us : then there was no sale of the defendant’s share. We are in possession of the joint property, not as owner, but as administrator of it.
    It is true, under the articles of partnership, the defendant was to administer the common stock. But he had left the plantation and it was both olir interest and duty to take care of it : and the defendant might, át any time, if he had seen fit, resume the possession of it. .
    It is true, we declined the offer of Tricou. His terms of payment did not suit us. The credit he required was too long. Will it be sáid that we are, on that account, bound to keep the property he offered to purchase, on the same terms. No : we had a right to have it sold for Cash.
    
      iiivíñgstoú for the appellee.
    No interest caft be allowed by'the appellee. We see him putting into the partnership all the property he possesses. lie is an industrious planter : his partner a rich one, good only, as he says himself, for advice. He is to be charged and he' charges himself with all the trouble, and management of a sugar plantation, a saw mill and a guildive, where his partner resides, and is to reside, at the distance of forty leagues.
    It is stipulated by the parties, that the proceeds of the crops shall be employed in discharging the debts they have contracted with May-ronne and others, and in case they should not be sufficient, each is to contribute with all his means to effect the payments.
    Wh a t is the meaning of this last clause ? That the appellee shall pay part of their debts, ip any other manner, than by the exercise of his industry ? Surely not : he had put every thing .he possessed into the partnership. Altho’ the ap-pelant has used all his means, in the discharge of the above debts, he cannot claim any interest : because he has done no more than to perform one of the conditions, on which the partnership was formed.
    What are the principal advances of the appellant ? The price of Gravier and Mayronne’s lands and of the negroes he has sent to the plantation. Did he not urge the purchase from Gravier ? Did he not, for several months and in several letters solicit to conclude that purchase ? Did he not, *n a Cei^a'1!7 degree, compel St. Pé to it ? Did he tell him, at the time, that if he should be obliged to pay the price, he would charge him with the interest'? Had he manifested any intention of this kind, the appellee, who had already exhausted his resources, would never have consented to, wquj(j never have made the bargain.
    As to the negroes, sent by the appellant to the plantation, above the number he was bound to furnish, the appellee was never consulted : and until the accounts were exhibited nothing shews that they had become the property of the partnership.
    Can the appellant demand any interest on the value of these slaves ? Was it in his power thus to effect the total ruin of his partner ? Both these questions must, or none of then can, be answered inthe affirmative. ^
    But he is not satisfied with claiming interest on the value of the slaves sent, above the number he was bound to supply : he charges it also on that of the latter, altho’ the appellee had time to pay his half of their value, until the lands which had been bought were paid for.
    The money, borrowed from Alain and Hopkins does not appear to have been employed for the use of the partnership.
    It is contended the appellant ought to be allowed interest, because his advances have deranged his affairs. Let us on this examine Pitot’s depoSition.
    Duplantier was shortly after the partnership began to furnish 1. S 15,000 in cash 2. twenty negroes, 3; all his means to discharge the debts, contracted for the purchase of the lands of Gravier and Mayronne. . He makes two very large purchases, on his own account : one of ⅞ 107,000, the other of S 15,000. On the first, he paid down g 23,000. Those occasioned his difficulties, his embarrassment.
    An account was settled and signed by the parties, and altho’ the appellant’s advance amount to upwards of g 50,000, nothing is said about interest. On the items of this account, surely none can be claimed.
    As- to the other sums due to the appellant, is there any posterior agreement that ever autho-rised him to demand interest. If he altered his mind, after the settlement, and intended to make a charge for interest, ought it not to have apprized his partner of it ?
    The appellant is in possession of the partnership plantation, as owner, not as administrator— - at least, since the proposition made by Tricou. He informed Boutté he had taken the plantation, on his own account. He afterwards agreed to take it at g 105 or 108,000. Previous to, and ever since that time he has been in constant and exclusive possession.
    It is said he cannot have acquired the property of the appellee’s share, without a contract of sale : and this contract cannot exist without a fixed price.
    dissolution of a partnership the first thing, which is to be done is the division of the joint property, if possible : but may not one of the partners take any specific object, by abandoning another, or paying the value in cash or debts, and will he not then be in by partition.
    AdmittiNg that this was a contract of sale, which could not be completed, until the price was fixed : we have seen, any of the partners could take the whole common property, at an estimated price. Now can the deposition of Boutté leave any doubt that the appellant had availed himself of this faculty ? And in the contract of sale does it not suffice that the price should be susceptible of being reduced to a certainty ? Id certum est, quod cerium reddi potest.
    
    Admitting that he is not bound to keep the property at the price at which it shall be valued, can he dispense himself from indemnifying us from the injury sustained by his preventing the acceptance of the favorable terms offered by Tricon ? He says the terms of payment were too distant: but Tricou deposes that the bargain did not fail on that account, but because the appellant wanted to retain five of the most valuable slaves • for himself.
    
      Duncan, in reply.
    Interest is at all events due On the monies paid to Gravier and Mayronne. The sums due to these gentlemen were the prices of two tracts of land respectively purchased from them : the nature of these debts, the things sold producing fruits, rendered interest exigible, from the day of the sale, till that of perfect payment. The appellant having satisfied the vendors, has been 'ipso facto subrogated to the rights of the creditors. What he has to claim from the appellee is still in his hands the price of his debtor’s part of the land, a debt which, ex natura rci and without any stipulation, carries interest. The appellant, being subrogated to the rights of the vendors, must exercise these rights entire; as they could claim interest, so can he. See Domat on thi§ subject.
    Finally, the respective rights and preten-tions of the parties were submitted to referees, who after hearing the parties have reported that interest is due to Du planner. . Referees are special Judges, appointed under an act of the Legislature, to settle long, intricate accounts, as were those of the parties to this suit ; when, therefore, they have pronounced, the accounts must be considered as settled, unless some gross misconduct °n Part' sh°u'd induce the Court to set their report aside, and refer the accounts to others. The Court, therefore, erred in disallowing the interest.
   By the Court.

This is an appeal, from the first i uclicial District. Cross actions had been J instituted in the Superior Court of the late territory, which were afterwards consolidated and referred to arbitrators. A report was made, but it does not appear, that it was confirmed. Every thing that has been said, on the subject of the award had no application and is unnecessary to be noticed by the Court.

We will not enter into a full statement of the case, as" it sufficiently appears on the face of the record. A brief one of the principal facts will enable us to understand the points in dispute.

On the 22d. of December, 1805, the appellant and appellee entered into articles of partnership for the purpose of establishing a sugar plantation near this'city. St. Pé put into stock a tract of land of ten acres in front, a saw mill and negroes, amounting in all to the value of S 21,900. Several slaves and money to a considerable amount were brought into the partnership by Duplantier. It was agreed that more land, adjoining the tract already mentioned, should be purchased and it was stipulated, that the proceeds of the crops should be employed in discharging the engage* ment of the parties with Mayronne and Others: and in case, they should not be sufficient, each of them should contribute all his means to effect the payments. St. Pé was charged with the superintendence of the plantation, and it was farther agreed that. the partnership should continue for five years : at the expiration of which period, if the parties should not agree on the division of the common property, an estimate of it should be made, and either party who chose, should take it and be accountable to the other for one half of the amount of the valuation.

On the 8th. of June 1811, an agreement was signed in the presence of three witnesses. By that instrument, it is covenanted that Duplantier should keep the plantation, and every thing apper-⅝ taining to the establishment, at the price of S 108,000. He transfers to St. Pé ten acres of land and seven slaves, in compensation of the part supposed to be due him, at the dissolution of the partnership. It was further agreed that the accounts of the parties should then be settled, as soon at possible, and if Duplantier should be in? debted to St. Pé, he should pay the amount in his notes at one and two years with the same interest which St. Pé should pay.

It is contended that this was a mere project of an agreement—that it was not solemnly enter®d into by the parties,, and if it .was, that if has been since rescinded. 7

This is inferred 1. from the conduct of St. Pé, on the offer to Tricon and 2. on the circumstance that the agreement is not relied on by the appel-lee, in his petition to the Superior Court.

It certainly, appears that St. Pé was willing that a sale should be made to Tricou. No final settlement had taken place of the accounts of the parties. Duplantier had possession of every thing and seemed little disposed to come to any arrangement. Besides, the offer made by Tricon-in-cluded the ten acres which Duplantier had contracted to cede to St. Pé, which together with the negroes were in compensation of what might appear to be due : it was essential then that he should be consulted and that his consent should be obtained to the sale.

, UNDER these circumstances, it is not extraordinary, that St. Pé should have supposed that, if an advantageous sale could be made to Tricou, a speedier settlement might be brought about. No arrangement having taken place with TricOu, the parties were in statu quo before the proposal.

As to the other objection, nothing can be inferred from it advantageous to the appellant. The agreement is distinctly stated, in the petition and altho’ the áppellee claim more that he was entitled to, the Court caK Seeínd reason for sitting aside the contract.

We are clearly 'tff opiHiétty that the Judgte be-tow was correct in pronouncing that the contract vested a right in the parties to the property reciprocally conveyed, leaving aH matters in difference, as to their accounts, subject to after liquid dation.

As tó the question of interest, ^the Court is also of opinion that the Judge below was correct. There is certainly nothing said in the contract on. this subject. It does not appear that it was the intention of the parties, that interest should be paid. St. Pé had put in his all, and on him dev volved the whole burthen of managing the plantation. If the crops should not be sufficient to pay off the engagements of the partnership, all the means of the parties were pledged. St. Pé’s means were exhausted, and it then became Duplan* tier’s*duty to use his, without any expectation of interest, but only to participate in the' profits, which might arise from the use of these means.

Btrr, it is said, he was compelled to borrow considerable sums of money, at an enormous in-' terest. It does not appear that he was compelled to do so, for the purpose of carrying on the plantation. It is presumed that had he applied his funds solely to the sugar establishment, great profits vVould ¼¾¾⅜⅜# made; but, we have it in evidence that he was engaged in other extensive speculations. These speculations were in all probability, the real cause of his.being compelled to resort to the tribe of usurers : but for this his partner ought not to, suffer. - We are of opinion that the Court below was right in not making any allowance of interest, but what may have bé'en included,^ in the account settled by the parties, making a balance in favour of Duplantier of & 59,110.

; But it is said, that at all events, interest must be allowed on the sums paid to Mayronne Mid Gravier—¡that Duplantier is, subrogated to their rights and to this point is offered the authority ofDomat. , , ,

. To this, it is sufficient to answer that Duplan- ' tier was intimately acquainted with the situation of St. Pé : lie knew exactly the extent of his means. The plantation of Mayronne is mentioned in the articles of co-partnership, and was in the contemplation of both parties ; means of paying for it are pointed out. If the crops should not be sufficient, both parties were to come on with their funds : but, is it stipulated that he who advances, shall receive any interest' from the other ? Was it ever imagined by either? Certainly not.

. But, interest must be paid, is it said, for Gravier’s mortgage. Who urged St. Pé to make this purchase ? Duplantier. Letter follows letter, pressing him to chase with Gravier. He writes “ my means are abütó»t, tf forturfe*: falls to per* “ secúteme. Gravier’s plantation mustnotescape “you. ” Can we, for an instant, believe that it was ever contemplated that St. Pé was to pay interest? Upon this point, the Court have - no doubt. The doctrine of subrogation has nothing to do with the case, and we are clearly qf opinion that no interest is due. .

It is said the judgment of the Court below is erroneous, because it has not decreed a con. veyance of the land and negroes. '

On this point, it is the opinion of this Court, that the agreement, of the 11th. of June, amounts to a partition of the estate. It was, before that period, holden jointly by theparties. The estate is severed by that act and each party holds his separate share, as partitioned by it.

We are of opinion, that the District Court was right, in decreeing that whatever balance should remain in favour of St. Pé, after being put in possession of the land and negroes, should be paid in two yearly instalments, to run from the date of the judicial demand. : ¡

It is ordered and decreed (errors appearing in the calculation) that this case be remanded to the District Court, with instructions to proceed to' ⅜⅝1>* for th#iipatpose of ascertaining the aroojiftf accordingikitp the principles, established; by this COW!.;.'. 
      
       Derbigny, J. did not. join in this opinion,having been of counsel in the cause.
     