[Gill v. Jett.] On the merits, we see no reason to disturb the verdict. It is, therefore, ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs. Boyce, for the plaintiff. Thomas, for the defendant. Martin v. Rutherford et al. VI, N. S. 281. A mistake in writing the sum, for which the judgment appealed from was rendered, is fatal. SIXTH District. PORTER, J., delivered the opinion of the court. The petition of the appeal in this case, states, that at the May term of 1825, of the district court, a final judgment was rendered against the plaintiff; that there is error in it, and that, therefore, an appeal is prayed to the Supreme Court. The judgment appears to have been rendered at the November term, 1824, and the appellees have prayed that the appeal may be dismissed, the judgment really rendered in the cause, not having been appealed from. The appellant contends, this objection is cured by the joinder in error, filed by the appellees, in which they state that there was no error in the judgment of the district court. Appearing and pleading to the merits, waives all errors of form, and irregularities in the manner the appellee has been brought into court: but can not cure such a defect as that which these proceedings present. No appeal has been taken from the judgment rendered. No issue has been, or can be joined, on the judgment really given, for the answer can only apply to the judgment complained of in the petition; and that judgment does not appear to have ever been rendered. It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs. Boyce, for the plaintiff. Oakley, for the defendants. Reeves et al. v. Burton et al. VI, N. S. 283. An attorney is a good witness, when he is not called on to disclose facts that came to his knowledge when consulted in his professional capacity. In testing the competency of a witness, the main question is, whether the judgment to be rendered may be given in evidence in a future suit against him. The surety is affected by notice of the assignment of the debt given to the principal. SIXTH District. MATHEWS, J., delivered the opinion of the court. In this case, the plaintiffs sue as transferees of Montgomery, who sold to them all his right and interest in the successions of his father and mother, to which the defendants are alleged to be debtors, in consequence of the purchase of property belonging to said succession, by Burton, one of the defendants who remained mortgaged for the payment of the price, and for the assurance, whereof Martin, the other defendant, became surety in the obligations which were given for the debt. The defendants plead a release executed to them in consideration of a compromise and payment made to the transferor, before the transfer was made, or at least, before they had notice thereof. Judgment was rendered in their favor in the court below, from which the plaintiffs appealed. The decision of the cause depends, principally, on the investigation of a bill of exceptions taken to the competency of a witness, offered on the part of the defendants, and to the admissibility of part of his testimony. The opposition in relation to incompetency, is based on two grounds. 1. That the witness is attorney in the cause. 2. On account of interest. The first is clearly untenable, as he is not required to disclose any facts, the knowledge of which was acquired confidentially in the pursuit of his profession. The objection, on account of interest, arises out of his situation as purchaser of part of the property mortgaged, as above stated, to secure payment of its price. As has been already shown, Burton purchased at the sale of the succession of Montgomery, the father of the transferor to the plaintiffs; and afterwards sold to Martin, his surety, who sold to Russel, he to Baldwin, and the latter to Thomas the witness, who appears to be now, proprietor of a certain portion of the land on which a right and privilege of mortgage is claimed. In testing the competency of a witness, the main question which arises, is: Can the judgment, about to be rendered, be legally VOL. III.-71 [Reeves et al. v. Burton et al.] received in evidence in any suit which may subsequently be brought against the witness, relative to the matters litigated in the action wherein he his brought to testify. The witness, in the present case, is then, by the evidence, to be in the situtaion of one, in our law, denominated a third person. He held property subjected to a mortgage, by which it was encumbered previous to his purchase, and is offered, to prove a release of that mortgage, granted by the creditor to his vendor and debtor, before the witness became proprietor, by a chain of titles, regularly deduced from said debtor. This is an hypothecary action, prosecuted, in pursuance of the provisions of the Civil Code, and should the plaintiff succeed in obtaining judgment against the principal debtor, by the express terms of the law, it becomes evidence, in a pursuit against the third possessor, to have the mortgage property sold. It is, therefore, clear, that the witness offered has a direct interest, to prevent a judgment from being obtained against the principal debtors, as that judgment would be legal evidence against him; in truth, the very basis of every subsequent proceeding in rem, which may take place, to effect a sale of the mortgaged premises, whilst in his possession. According to this test, he is evidently incompetent. The conclusion to which we have arrived, on this bill of exceptions, renders it unnecessary to examine that which relates to the receiving oral testimony, to prove the contents of a written release, said to have been executed in 1823, and alleged to have been lost. The proof of loss, as exhibited by the testimony, would probably have authorised a substitution by oral evidence. But as the witness is incompetent, no part of his testimony can be received. A subsequent release is set up in defence, which, by a comparison of dates with the act of transfer to the plaintiffs, is found to be posterior in time. This circumstance would not impair its validity, if it should appear to have been executed, prior to the debtors having received notice of the transfer. The evidence on record shows, that they had a knowledge that the debt was transferred to the appellees, before alleged payment, or satisfaction to the original creditor, and execution of the release on his part. It is true, that no formal notification appears to have been given by the plaintiffs; but the defendants derived knowledge of the fact from one of the former. The testimony seems to confine this knowledge to Burton alone: now, as he is the principal debtor, we are of opinion, that it must affect the rights and privileges of his sureties, as they were not bound to pay, and could not regularly volunteer a payment, without requiring the principal to be first pursued. They might have paid, and been subrogated by the creditor to all his rights on the debtor; but in the case before the court, it appears that the creditor had transferred the rights to the plaintiffs, and that the debtor had notice of the transfer. The obligation of the sureties being accessory, must follow and abide the fate of that of the principal. According to this view of the cause, the plaintiffs have clearly established a right to recover the amount claimed in the petition. [Reeves et al. v. Burton et al.] It is, therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled; and it is further ordered, &c. that the plaintiffs and appellants, do recover from the defendants and appellees, the sum of two thousand one hundred and sixty dollars, with interest, at the rate of ten per cent. per annum on one third part of said sum, from the 1st of April, 1820; also, interest on the remaining two thirds, at the same rate, on one, from the 1st of April 1821, and on the other, from the 1st April 1822, with costs in both costs. Johnston, for the plaintiff. Wilson v. Baillio et al. VI, N. S. 288. SIXTH District. It is a fact judicially established, by the endorsement on the copy of the Code of Practice forwarded for the use of the Supreme Court at Alexandria, Rapides, that the Code of Practice reached Rapides on the 3d day of October, 1825. Ganiott v. Havard. VI, N. S. 290. A judgment against the assignee of part of a debt on the ground that he acquired no interest by the assignment, forms no res judicata against the original creditor. After the death of a partner, the affairs of a firm may be carried on in the social name, for the benefit of the survivor and the heir of the deceased. SIXTH District. PORTER, J., delivered the opinion of the court. This action is brought on a bond, by which the defendant bound himself as surety, to one McCrummin, who had replevied a quantity of cotton, seized in an action which the plaintiff instituted against him. The petition states, that judgment was recovered against McCrummin for 800 dollars, with interest, and costs amounting to 42 dollars 624 cents, that he is insolvent, and that the defendant is responsible for the amount, with the exception of 300 dollars, which the plaintiff has transferred to one Hollaway, and which he does not make claim to. He states that he sues for the use of King & Beatty, and Isaac Thomas. The defendant pleads, that the plaintiff never did transfer to King & Beatty, and Thomas, the balance due on the bond. That the matters and things growing out of the demand in the petition, have already been adjudicated on in the Supreme Court, and have acquired the force of res judicata. That the principal in the bond, McCrummin, has paid the plaintiff the amount claimed in the petition, and more, for which overplus, the defendant is entitled to judgment in reconvention. And lastly, that the plaintiff cannot parcel out the bond to different persons. There was judgment in the district court, in favor of the plaintiff, for 542 dollars, 624 cents, with interest, at five per cent., on 500 dollars, from the 26th of November, 1823, until paid. The defendaut appealed In this court, the defendant has made the following points: 1. The judgment is for 542 dollars, 624 cents, when the prayer was only for 500 dollars. 2. The attempt to prove, that the plaintiff had funds in the hands of the principal in the bond, is too vague to merit notice. Civil Code 2257. 3. Res judicata. I. The prayer in the petition is not for 500 dollars alone; but for 500 dollars and interest, and 42 dollars, 624 cents, the amount of costs |