delivered the opinion of the court.
The defendant and appellant has built his hopes of the revisal of the judgment, and having the case remanded for a new trial on a bill of exceptions which he took to the opinion of the court, who declined to instruct the jury that the action was barred by the lapse of one or three years, and charged that the prescription of ten years was alone applicable thereto.
The plaintiff claimed compensation for services rendered to the defendant, during nine years in buying and selling slaves, and in collecting and superintending others purchased by the defendant.
The evidence shows that the plaintiff was employed chiefly in collecting and superintending slaves, bought by the defendant or his agents, for whom it appears he purchased a few and sold some; that the defendant supplied him with sums of money to buy slaves, and other sums to carry to bis other agents.
It is contended on the part of the plaintiff, that his services were those of an agent, which are barred by the prescription of thirty years under the former, and of ten years under the present code, while the defendant contends they were those of a servant, a laborer or workman, which are barred by the prescription of one year, or at most those of a clerk, which are barred by that of three years. Civil Code, 3499 and 3503.
The defendant, to support his pretensions, has urged that the evidence shows that the plaintiff, before he came to his service was in the humble situation of a boatman, a sawyer and a weaver, and the plaintiff has shown that afterwards *15he dressed so genteel, and lived in such a style that he was thought to be the defendant’s partner.
The word servant in Civil Code Art. 3499, is .restricted to menial servants. An action for the wages of a person employed in selling and superintending slaves, is barred by the lapse of tlireo years. Although the case be tried by the jury on an erroneous charge from the court, it will not be remanded, if it can be terminated in the app ellate court without depriving either party of any advantage resulting from the verdict of the jury, and if relief can be given as to the error resulting from the charge.We think the District Court correctly refused to charge that the action was prescribed by the lapse of one year.— The plaintiff was neither a workman nor a laborer, and the word servant in the Civil Code, 3499, is in our opinion to be restricted to menial servants.
But we think the judge erred on refusing to charge that the action was prescribed by three years, as the plaintiff is, in our judgment, to be considered as the defendant’s clerk.
But the plaintiff has urged that in this view of the case, the continuity of his services presents an obstacle to the application of prescription; because the affirmative proposition in the cases of workmen, laborers and servants, that as to them the continuity of the services forms an obstacle to the prescription, is pregnant with the negative; that in other cases it does not.
This point was otherwise determined in the case of Judice’s heirs vs. Brent. 6 Martin, N. S. 228.
An attorney claimed compensation for services during five years, at one hundred dollars a year, on a special contract; prescription was pleaded and this court held that on the too first years the action was barred.
Although the case was tried by a jury on an erroneous charge from the court, we think justice does not require the case should be remanded for a new trial; because we may terminate it here, without depriving either party of any advantage resulting from the finding of the jury, and give the dendant relief as to the error in which the mistake of the inferior court led them.
Compensation for nine years services was claimed; the judge ought to have told the jury that the claim for the first-six years services was barred. Had this been done, the verdict would have been for three years services instead of nine, i.e. their verdict should have been for one-third of the sum allowed.
For this one-third the plaintiff is entitled to our judgment. It is, therefore, ordered, adjudged and decreed, that the *16judgment of the District Court he annulled, avoided and reversed, and that the plaintiff recover from the defendant the sum of six hundred and forty-seven dollars, with costs in the District Court; that the plaintiff and appellee pay costs in this court.