Baudin v. Dubourg

MaRtin, J.,

delivered the opinion of the * court. This ease is before us on an assign* 0 ment of error, by the defendants and ap- ^ & pelfontS. r

j> ¶⅞6 iudgment is against the defendants, ° ° ° while on the transaction complained of. they 1 J Were not principals, but only attorneys in fact or agents.

2. That the sum of $700, admitted by the plaintiff to have been received, was not allowed in compensation.

We are of opinion the appellants cannot be relieved on either of these points. They are sued as attorneys in fact, and nothing on the record shows that the plaintiff meant to recover from them in any other capacity. The judgment therefore must be taken secundum allegata, and the relief obtained confined to the capacity the petition gives them; as if sued as executors, curators, &c.

The case was submitted to referees j if they erred, their report ought to have been object-r S J ed to: and while they were silent, the court could not ex officio take notice of the error. The errors which may be assigned as apparent are only those into which the court itself falls, not those of referees, which are always cured by the submission of the party without objection.

Moreau for the plaintiff, Cmillier for the defendant.

it is therefore ordered, adjudged, and decreed that the judgment of the district court be affirmed with costs.