dissenting. This is a suit to render a recorder and his securities liable for the amount of a judgment which it is said he was instructed to record and he failed to do so. The evidence to establish this responsibility should be strong, clear and conclusive.
The only evidence in this case in favor of plaintiff is the- testimony of R. B. Todd, Esq., the attorney who obtained the postponement. His testimony is that he instructed the recorder, verbally, to re-register the judgment at the same time that he told him to re-register another *680judgment in another case, which latter judgment was re-registered. This the deputy recorder positively contradicts in his testimony. The declarations of Mr. Todd to his law partner, made just after these instructions to the deputy recorder were given, and made out of the presence of the recorder, were offered and received in evidence. I am inclined to the opinion that they should have been excluded for the reasons urged against their reception in the bill of exceptions — that it was hearsay.
But if the evidence be regarded as legal, because a part of res gestee, still I can not perceive how that strengthens the plaintiff’s case — it is still only the unsworn declarations of Mr. Todd, whose testimony was-already in the case. And we have the testimony of Mr. Todd opposed by the testimony of Mr. Naff — both unimpeached and both interested in the result. I have no reason to doubt the veracity of either witness, and the only hypothesis upon which both witnesses swore truthfully, is that Mr. Todd told Naff to re-record the judgment, but Naff did not. hear, or did not understand him. I must infer this to have been the-case, as the deputy recorder did register the one judgment and failed to re-register the other. He had no motive for not recording the judgment, whereas his interest in the fee for recording would have induced him to do it, if not his official duty. Besides, the presumption of the law, that every officer does his duty, is in his favor.
Upon the hypothesis aforesaid, who was to blame ? I maintain that it is the party who gave the verbal instructions, unaccompanied by a copy of the judgment to be recorded, or any written memorandum. Besides, it appears that the loss sustained was by the peremption of the mortgage, through the delays of the plaintiff, occasioned either through-negligence or a disposition to favor his debtors. He has, therefore, himself contributed to the loss, and the jurisprudence of this State is well settled, that one, whose negligence has contributed to an injury or loss, has no right to claim indemnity. 14 An. 524; 1 An. 374; 17 La. 391; 23 An. 464; 24 An. 464; and case against City Railroad Company recently decided at New Orleans.
In June, 1869, plaintiff instituted the hypothecary action on this judgment, and though no answer was filed or defense of any kind was made until May 23, 1871, no effort appears to have been made to make the judgment by default final, although the mortgage was not perempted until third July, 1870, and in the interim at least two terms of the court were held.
I therefore dissent from the opinion of the court.