The opinion of the court was delivered by
Breaux, J.Plaintiffs, owners of all the assets of John Chaffe & Sons, former owners, instituted this suit against the defendant to recover of him a balance, alleged to be due on three notes, the face value of which aggregate an amount of §2700 in principal, dated 6th September, 1882, and bearing 8 per cent, interest from March 1, 1882. These notes show certain credits endorsed, the correctness of which is denied.
The defendant in his answer denies the 'allegations of the petition and only admits the execution of the notes sued on.
He contends that he is released from his obligation as maker of the notes for the reason that he transferred to John Ghaffe_&Sons three certain promissory notes as collateral security, signed by M. DuBose as drawer, and secured as to their payment by mortgage on property in the town of Lake Providence. These notes thus transferred amounted to §2000, and bore 8 per cent, interest per annum from December 10, 1878.
The attorney of defendant had these notes in collection.
They remained in his possession with the consent of the defendant.
The pledgees brought suit via executiva on these notes on November 3, 1882.
The proceeding of foreclosure was enjoined by Dubose.
From that judgment appeal was taken to this court. Vide, Chaffe & Sons vs. V. Dubose, 36 An. 257.
Afterward a second injunction suit was brought by the same plaintiff in injunction.
These two injunctions having been dispósed of, the property mortgaged to secure the payment of the pledged notes was ultimately sold on June 6, 1885, for §1500.
The sheriff’s return made at the time show that he deducted costs, taxes and fees, leaving an 'amount of $1049.26 to the credit of the seizing creditor. *
*393No objection was made to the deduction.
A short time after the sale, in 1885, the pledgees furnished a statement to the defendants in which was included the items charged by the sheriff in his return as well as others, amounting altogether to §562.47, and leaving a balance to defendant’s credit which was afterward endorsed on his-notes, due to the plaintiffs, of §987.53.
The statement was enclosed by mail to the defendant who was requested, to examine it and let them know if correct.
The request was complied with, and the statement was accepted as satisfactory.
The defendant now claims that plaintiffs made themselves the owners of the DuBose notes, pledged by him to them, and responsible for the whole amount; and besides he claims.and charges that it was the duty of Chaffe & Sons to require the sheriff to collect rents upon the property during the seizure, and having failed so to do, he alleges that they became responsible to him for the amount, viz: §30 per month for thirty months, and he prays that he be credited with this amount.
He also alleges that plaintiffs owe the balance due on the Dubose notes, because they failed to sue him for this balance; that they should be held for not having brought suit for costs and damages on the injunction bonds furnished b;y Dubose, the debtor of the pledged notes.
The amount of this last claim is limited to §1500.
The ease was tried by jury and a verdict was found for plaintiffs for the amount claimed.
On motion for new trial the verdict was set aside for defect of form.
On new trial judgment was pronounced for plaintiffs from which the defendant appeals.
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It is in place to decide the questions presented in several bills of ■exceptions.
Upon the last trial counsel for plaintiffs offered the testimony of two witnesses taken upon the former trial.
One of the witnesses was sick and unable to be present, the other absent.
Counsel for defendant objected upon the grounds that it was not shown that this evidence could not again be taken either in person *394or by commission; that be would be limited to this testimony, and denied the right of interrogating these witnesses.
The issues in the first and second suits were identically the same, not the least amendment had been made; the evidence was taken contradictorily with the defendant, who only claimed the right to' interrogate the witness upon other matters tha-n those testified to in the first suit.
.The defendant had ample opportunity for the cross-examination of the witnesses in the first suit.
We do not discover the least surprise or advantage. Conway vs. Erwin, 1 An. 391. Even if this evidence were excluded, the damages claimed would not be proven.
Without it, the record discloses the insolvency of the debtor of the collateral security; 'and it is not proven that the loss of the bonds, if any, was one for which the plaintiff could be held.
The counsel for the defendant, it is shown by a second bill, offered to prove by his own testimony that he had received a proposition from M. Dubose 'to transfer him property by which the whole amohnt of the Dubose notes placed in the hands of Chaffe & Sons by him could be realized, also to prove the answer made by the latter.
The defendant did not obj^pt when the sheriff credited the proceeds under the foreclosure proceeding before mentioned; he also expressly approved the distribution of the funds as' made; he did not allege in term that Chaffe & Sons declined to accept a proposition of compromise, made through him, whereby the whole claim would have been settled.
The evidence was not admitted and was properly excluded.