Opinion of the court.

correct, as is obvious from the allegations of both petitions. They allege the consideration of the note as the cause of action, rather than the note itself, and the judgment of the court very properly followed the declaration or petition. Reference is made in the bill of exceptions to the note and the testimony in support of it rather as evidence of the amount due to the plaintiff than as the foundation of the suit.

3. But the plaintiff in error still relies upon the plea of prescription, and insists that the action was barred by that limitation. Nothing is said upon that subject in the opinion of the court, but inasmuch as that defence was set up in the answer, and is mentioned in the bill of exceptions as one of the objections taken by the defendant to the right of the plaintiff to recover, we think the point is properly open to review in this court. Hamilton gave the note in liquidation of the demand of the plaintiff, and the bill of exceptions states that the defendant had notice of it before the death of Hamilton, who died in August, 1855. After the death of Hamilton his administrator made a settlement with the defendant, and transferred to him the one-fourth of the steamboat which belonged to his intestate, and in consideration of that transfer the defendant assumed and agreed to pay all the debts due by the boat. Express statement of the bill of exceptions is that that settlement took place on the twenty-second day of September, 1856, and that the cause of action in this case was included in that settlement." Viewing the matter in that light, the court held that the promise of the defendant to the administrator of the deceased part owner enured to the benefit of the plaintiff, and inasmuch as it was within the year next preceding the commencement of the suit, it was doubtless the conclusion of the court that the plea of prescription was not maintained. Suggestion of the defendant, however, is that there was no satisfactory proof of the acknowledgment of the specific amount stated in the petition, but the statement in the bill of exceptions is substantially otherwise, and we think the statement was fully warranted by the pleadings and evi

Opinion of the court.

dence. Assuming the facts to be so, then it is clear that the plea of prescription is not maintained, as the petition was filed on the twentieth day of April, 1857, less than one year after the settlement was made.

4. Remaining objection of the present plaintiff, the defendant below, is that the court erred in allowing eight per cent. interest. Legal interest in Louisiana is fixed at five per cent., and the legislature has provided that "conventional interest shall in no case exceed eight per cent., under pain of forfeiture of the entire interest so contracted." Theory of the plaintiff in error is that the judgment was rendered upon the note, and that inasmuch as the note stipulated for the payment of ten per cent., the entire interest was forfeited. Present defendant denies that theory, and we think it cannot be sustained for the reasons already given. Judgment was rendered on the cause of action stated in the petition, as before explained, and not on the note, as assumed by the present plaintiff. Conventional interest might be eight per cent., and as the petition claimed no more, and no more. was allowed by the court, the presumption, in the absence of proof to the contrary and of any exception to the decision of the court, is that the judg ment is correct. Such a question might have been presented in the finding of the court, or it might have been presented in the bill of exceptions on objection to the ruling of the court. But usury was not set up, either in the original or supplemental answers, and it does not appear that any such objection was made in the court below. Parties might lawfully agree that the rate of interest should be eight per cent., and inasmuch as that rate was demanded in the petition and was allowed by the court, and no objection was taken to the ruling of the court, it must be presumed in this court, under the state of the pleadings exhibited in the record, that the court decided correctly.

The decree of the Circuit Court is therefore

AFFIRMED, WITH COSTS.

Statement of the case.

SPARROW V. STRONG.

1. This court will not take jurisdiction of a judgment shown by the context of the record to be but an order affirming a refusal of a court below to grant a new trial; even though the language of the record of affirmance brought here by the writ of error purports to affirm generally the judgment of a court inferior to the affirming court, and the only judgment, in strict language, in the record of such inferior court, is a general judg

ment.

2. An appeal from an order denying a motion for a new trial does not, under the legislation of Nevada, carry the original judgment and the whole cause before the appellate court, so that the decision upon the appeal operates as a judgment reversing or affirming the judgment below.

SPARROW brought ejectment against Strong in the District Court for the County of Story, in Nevada, for an undivided interest in a mining claim, the proceeding being in the form prevailing in Nevada, of petition, answer, and replication.

On the 21st of May, 1862, a jury, after hearing the evidence and the charge of the court, rendered a general verdict for the defendants.

On the next day afterwards, to wit, on the 22d day of May, 1862, the court pronounced judgment on the verdict.

On the 13th of November, 1862, the District Court in which the cause had been tried heard a motion for new trial, and, after argument, overruled the motion and refused the new trial, to which the plaintiffs excepted.

Two days afterwards the plaintiffs gave notice to the defendants that they (the plaintiffs) appealed to the Supreme Court of the Territory from the order of the District Court, made on the 13th of November, 1862, overruling the motion for a new trial.

On the same day of this notice the defendants filed a bond -an undertaking-for the damages and costs. In this bond they recite that it is given on an appeal from the order of the District Court, made on the 13th of November, overruling the motion for a new trial.

On the 22d of November, 1862, the counsel of both parties agreed upon a statement; and it was declared in their agree

Statement of the case.

ment that the statement so settled was to be used on the hearing in the Supreme Court of the appeal from the order of the District Court refusing a new trial, which order is referred to in it as made on the 13th of November, 1862.

The statement comprised:

1. The motion of the plaintiffs for a new trial, and a specification of the grounds on which it was to be sustained; among which are insufficiency of the defendants' evidence, surprise at the trial, and newly-discovered evidence.

2. Certain evidence, oral and documentary, given on the trial. There were no bills of exception to evidence embodied in the statement; but in the specification of grounds it was alleged that the evidence was excepted to.

3. The prayers of both parties for instructions to the jury on questions of law, with the answers of the judge.

4. The general charge to the jury.

5. Affidavits of the parties, and of several other persons, taken after trial, to prove surprise and newly-discovered evidence. One of these undertook to detail what a certain witness, who had been rejected, would have sworn if he had been admitted.

On this statement, apparently, the case went into the Supreme Court of the Territory. No writ of error was taken out; nor did bills of exception accompany the evidence; nor was any assignment of error made in the Territorial Supreme Court.

On the 16th of March, 1863, the Supreme Court gave judgment in the case as follows:

"On appeal from the District Court of the first judicial district in and for Story County.

"Now, on this day, this cause being called, and having been argued and submitted and taken under advisement by the court, and all and singular the law and the premises being by the court here seen and fully considered, the opinion of the court herein is delivered by Turner, C. J. (Mott, J., concurring), to the effect that the judgment below be affirmed.

"Wherefore it is now ordered, considered, and adjudged by the court here, that the judgment and decree of the District Court of

Statement of the case.

the first judicial district in and for Story County, be and the same is affirmed with costs."

From this judgment of the Supreme Court of Nevada a writ of error, on the 14th of August, 1863, was taken here. On the same day the plaintiff in error filed with the clerk of the Supreme Court of the Territory the assignment of errors for this court; that is to say, a specification of the grounds on which they relied here for the reversal of the decision of the Territorial Supreme Court.

In those specifications they complained that the Supreme Court of the Territory refused to reverse the judgment and order of the District Court refusing a new trial. Then followed the specific objections to the judgment and order, some of which were matters of fact.

On the same day that the writ of error from this court was taken out and the errors assigned the plaintiffs petitioned for a citation. In that citation they described the cause or subject-matter which it was their object to have reviewed in this court. They set forth that, after trial and judgment in the District Court, they moved the same court for a new trial; that it was refused on the 13th of November, 1862; that an appeal from that order was taken to the Supreme Court of the Territory; that in the latter court, on the 16th of March, 1863, judgment was rendered "affirming the order of said District Court," that the plaintiffs afterwards asked for a rehearing, which was denied them; hence the writ of error.

This court, two terms ago, on the record being brought before them, by a motion to dismiss the case on other grounds assigned, doubted, on looking at the judgment of affirmance above quoted, as given in the Supreme Court of Nevada, whether it was a final judgment or decision reviewable here within the meaning of the act of Congress organizing the Territory, and which gave this court jurisdiction to review "the final decisions" of the Supreme Court of the Territory, and ordered that point to be argued. It was accordingly argued; the argument turning chiefly on the language of the affirmance.