Roselius v. Barelli , 16 La. Ann. 386 ( 1861 )

Land, J.

The plaintiffs, who were formerly partners in a plantation, sue to recover the price of a slave sold at auction, with other slaves belonging to the partnership, without any warranty except as to title.

The defendant resists the plaintiffs’ claim on the ground of redhibitory defects in the slave, to their knowledge, before and at the time of the sale.

The case was tried by a jury who rendered in favor of the plaintiffs a verdict which was confirmed by the judgment of the lower court.

The defendant has appealed, and complains of the ruling of the Judge a quo on the trial, in permitting the testimony of two of the plaintiffs to be received in evidence, notwithstanding his objections at the time, as shown by his bill of exceptions in the record.

The Judge received the testimony of the witnesses for the reason, that they had conveyed all their interest in the suit, and had subrogated their co-jDlaintiff to all their rights against the defendant; and had been released by him from all liability of every character whatsoever which had arisen, or might afterwards arise out of the suit, whether for costs, warranty, or otherwise.

The Judge erred in receiving the testimony; because one of several plaintiffs cannot release his co-plaintiffs from the payment of costs, and thereby divest them of all pecuniary interest in the event of the suit; for the reason that the costs are due to the officers of court, to whom the plaintiffs are liable in soUdo for the payment of all fees from the commencement of suit. A co-plaintiff can only be released from the payment of costs, by the parties to whom the costs are due. A release by any one, except the creditor or his authorized agent, is without any legal effect and void.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed; and that this cause be remanded for a new trial, and further proceedings according to law; and that the appellee pay the costs of this appeal.