St. Martin v. His Creditors.

which nothing in the record is calculated to sanction. The district judge thought, that as the insolvent could not be sworn as a witness in this case, his acts, although done long previous to his insolvency, were not to have any weight or bearing, nor to authorize the legal inferences that such acts would otherwise warrant. Admitting that the insolvent would not have been a good witness to prove that this money was received by his mother for the account of the opponents, although this is by no means clear, as he would be testifying against his own interest, his acts which are relied on to show this fact, should have their due weight, as they took place at a time when it is impossible to suppose that any of the parties were manufacturing evidence for this case. But the record exhibits another corroborating circumstance, which renders it altogether improbable that René Lemonier would have advanced to P. A. St. Martin, for his own account, $2540, out of the funds of the estate of his grandfather. It is shown that, at the probate sale of the succession, the insolvent, and his brother F. B. St. Martin, who were the only heirs then of age, bought property to an amount much larger than their probable portion as heirs of their grandfather, which, it is admitted, will fall much short of the amount claimed. This circumstance is conclusive to our minds, that P. A. St. Martin would not have asked, much less René Lemonier have paid, this amount of $2540, on the order of the insolvent, had it not been well understood that it was for the use and benefit of the mother and tutrix of the minors St. Martin, who had as yet received no portion of their grandfather's estate. The claim of the opponents should, we think, be allowed, after deducting from it the sum coming to each of the insolvents, P. A. St. Martin and F. Bauchet St. Martin, as heirs of their deceased sisters, Héloise and Genevieve.

It is therefore ordered, that the judgment of the District Court be reversed; and proceeding to give such judgment, as in our opinion should have been rendered below, it is ordered that the tableau of distribution be amended, and the opponents placed thereon as mortgage creditors for $2381 25, with legal interest from the 18th of June, 1832, on the property formerly belonging to their tutrix and surrendered by the insolvent; the costs to be

City of Lafayette v. Parish Judge of Jefferson.

borne by the estate; and the tableau so amended to be finally homologated.

THE PRESIDENT AND COUNCIL OF THE CITY OF LAFAYETTE V. THE PARISH JUDGE OF Jefferson.

No appeal will lie to the Supreme Court from an order of a District Court, directing a mandamus to a parish judge commanding him to allow an appeal to the District Court from a judgment rendered by him on an opposition made under the stat. of 26 March, 1842, relative to lands divided into town lots. Such an order is not a final judgment in any case pending before the District Court C. P. 566, 839. Aliter, had the mandamus been refused.

APPEAL from the District Court of the First District, Bu chanan, J.

Wills, for the plaintiffs.

Remy, for the appellant, Buisson.

MORPHY, J. This is an appeal from an order of the District Court, directing a peremptory mandamus to be issued to the parish judge of the parish of Jefferson, commanding him to allow an appeal to that court from a judgment by him rendered, on an opposition made by the President and Board of Council of the city of Lafayette to the approval of a corrected plan of the suburb Livaudais, filed in his office by Benjamin Buisson, state surveyor for the parish of Jefferson, pursuant to the law of the 26th of March, 1842, relative to lands divided into town lots. We have found it unnecessary to examine the grounds upon which the district judge based the order complained of, as we are of opinion that no appeal to this court lies from such an order. It is not a final judgment rendered in any case pending before the District Court. The order is one made by that tribunal in aid of its appellate jurisdiction over an inferior court, with which it is not our province to interfere, especially as it works no irreparable injury to the appellant. Code of Practice, arts. 566, 839. If the application for a mandamus had been refused by the District Court, we might perhaps have felt it our duty to entertain an

Martinstein v. His Creditors.

appeal from the decision, as it might have unlawfully deprived the applicants of their constitutional right of bringing their case ultimately before this tribunal, in a controversy the amount of which exceeds three hundred dollars.

Appeal dismissed.

JOHN H. MARTINSTEIN V. HIS CREDITORS.

The books of a merchant cannot be given in evidence in his favor; but if introduced by the other party, the whole must be taken together. C. C. 2244. To ascertain the amount due on a debt bearing interest on which partial payments have been made, interest should be calculated from the maturity of the debt till the day of a partial payment. If the payment exceed the interest then due, it should be applied first to the payment of the interest, and the residue to the extinguishment of the principal; interest to be calculated on the balance due up to the next partial payment, and so on. Should any partial payment be less than the amount of interest at the time, it must be imputed, so far as it will go, to the extinguishment of interest. C. C. 2160.

APPEAL from the District Court of the First District, Buchanan, J.

Canon and Roselius, for the appellant, Martinstein.
Preston, for the representatives of Aikin.

Lockett, for the syndic.

SIMON, J. The matters in controversy grow out of the tableau of distribution filed by the syndic of the estate of John H. Martinstein, who, far from being insolvent, appears by the said tableau to be entitled to a large balance proceeding from the sales of the property by him surrendered to his creditors.

Opposition was made by the petitioner to the homologation of the said tableau on divers grounds, among which he complains, that the amount therein stated to have been paid by the syndic to Oliver Aikin or his succession, is not wholly due by the opponent, who acknowledges himself indebted to Aikin only in about the sum of $12,000. He also alleges that in his account filed there are sums for illegal interest, for commissions, &c., which are not due by the opponent; and that the sum of $3845, stated

Martinstein v. His Creditors.

in the tableau to be the balance of accounts claimed by Aikin, or his representatives, is not due by the opponent.

Aikin's representatives also filed an opposition to the tableau, based upon an account annexed thereto, in which they claim as due to them on the first of February, 1837, a balance of $9311 84, which they pray may be allowed, with ten per cent interest from that date until paid.

The respective pretensions of the opponents were fully and minutely investigated by the judge a quo, from the vouchers and documents produced, and from the books kept by Aikin, the same having been called for by Martinstein. Written instructions or directions were given by the judge to serve as the basis of the account to be established and liquidated between the parties, whereupon said parties respectively made a statement of the amount which they conceived to be due to Aikin's representatives. The account presented by Aikin's representatives shows a balance due them of $6358 48, and the account presented by Martinstein exhibits a balance due by him, of only $2335 99, making a difference to be decided upon by the court of $4022 49, which became the subject of a new investigation.

The judge a quo proceeded to liquidate the balance due by Martinstein to Aikin, and found that the latter was entitled to recover the sum of $6000, for which he rendered judgment in favor of Aikin's representatives, to be paid out of the funds in the hands of the syndic; and from this judgment Martinstein has appealed.

This case presents no question of law. It involves merely questions of account which, as we have already remarked, were fully investigated by the inferior judge, and appear to have been settled below from the facts disclosed by the various transactions had between the parties during a certain number of years, and from the friendly intercourse which appears to have existed between Martinstein and Aikin, the latter of whom used to endorse for Martinstein, and to aid him in raising money, &c. There was a written agreement signed by them on the 25th of April, 1834, in which, after mentioning that a certain number of notes were deposited by Martinstein in the hands of Aikin, as collateral security for the payment of four notes due by Martinstein, amount

Martinstein v. His Creditors.

ing to $17,000, endorsed by Aikin, and due and protested on the 23d of the same month, it is expressly stated, that certain property sold by Martinstein to Aikin, is to be reconveyed to him after payment of the amount due Aikin, &c.; that the surplus of the proceeds of the sale of other property mortgaged shall be accounted for &c.; and that certain notes received by Aikin from Roswell Beebe, and shaved for the purpose of paying Martinstein's notes, are considered as having been discounted at the expense of said Martinstein.

We have read attentively the directions given by the judge a quo, on which Aikin's account was based, and are convinced of their correctness. Those directions were also taken by the judge as the foundation of his final judgment upon the respective rights of the parties; which judgment divides the difference between their respective accounts into seven items, a careful review of which has brought us to the conclusion that no error has been committed.

1st. The sum of $853 is allowed as being the amount of the the shaving interest to be supported by Martinstein. It is clear that this charge is to be borne by him, under the written agreement above referred to.

2d. This is for costs paid in a suit against Martinstein, and was properly allowed.

3d. This is for a sum of $1100, charged as cash to Martinstein. It appears that this charge was proved by the books of Aikin, called for by Martinstein, and produced in evidence. Martinstein had the benefit of two credits found in the books, and it is clear that, although the books of merchants cannot be given in evidence in their favor, still, when called for by the other party, they must be taken together; and they cannot be rejected, when they contain facts against the party at whose request they are produced. Civil Code, art. 2244. Code of Practice, arts. 140, 473.

4th. This item of $202 50, was properly rejected, as being already included in another charge.

5th. This charge is for one of Commagère's notes which was lost or mislaid, and never was recovered by Aikin. The re mark of the judge that the loss of this note cannot materially in