delivered the opinion of the court. This is the second appeal in the pre- , sent ease. Un the former, after settling many . , . . , . ... . . questions, in relation to toe admissibility oi . ., , i » testimony, the cause was remanded to be tried de novo, Ante, 325. According to the form in which it is now presented, its decision *627depends wholly on matters of fact; for we arestHl of opinion that those ot law were for-redly decided by the judgment rendered on the first appeal.
The court below, in pursuance of its belief, derived from the whole evidence of the case, gave judgment in favor of the plaintiff for ⅞108. from winch the defendant appealed.
Independent of the pleas of the latter, by which he claims in compensation and recon-vention, the correctness of this judgment is not contested.
The only evidence found on the record, in support of the plea of compensation, is a little book of accounts, said to have belonged to the steam-boat Teche, in which the entries now relied on were made, at a time when the plaintiff* was part owner and master of said boat. This book the judge a quo seems to have considered of little weight, on account of exhibiting no regular and detached charges against the appellee, and also having the appearance of imperfection in the manner in which it was kept. If we add to these circumstances the fact disclosed in the testimony of S. Robitaille, that on a settlement made by *628the plaintiff-, in the spring 1821, his account with the boat was nearly balanced; ■ it is believed that no doubt can remain of the correctness of ttie views take?) by the parish judge of this part of the cause.
The testimony on the record, which relates to the plea in recouveution. leaves that matter doubtful; that of Robitaille and Shaw tends strongly to fix on the appellee such negligence and misconduct in the management of the cargo of the boat which received damage in 1823. (whde he was master and commander) as ought to make him responsible to the owners for the loss by them sustained. The testimony of Peek exonerates him completely from any charge of negligence, and consequent responsibility. If this witness be worthy of belief, and his credibility is not impeached, except by the repugnance between the facts disclosed in his evidence and those in the testimony of Robitaille and Shaw, the conclusion of the judge a quo, by which he seems to have rejected the defendant’s claim in reconvention, does not appear to us to be so violently opposed to the entire evidence of the case as to require the interference of this court. The truth of Peck’s *629testimony is somewhat corroborated by the J . long silence ofthe defendant on that, subject; his employing the plaintifTafterwards as pilot for the boat, and pay ment in part of his wages.
Carleton & Lockett for the plaintiff Mt Caleb &f Byrnes for the defendant.It is therefore ordered, adjudged, and de- • creed that the judgment of the parish coart be affirmed with costs.