Mary Ellen Long v. William Long, 3 Rob. 108

Martin, J. This action is brought on a notarial act for the sum of eleven hundred dollars.

The defendant resisted the claim, on the ground that he had received five hundred dollars only ; and he propounded interrogatories to the plaintiff, who admitted, in her answer, that she had paid that sum only, but stated that the balance was a remunatory donation made to her by the defendant, in consideration of the sacrifices she had made in leaving her home, at her own expense, in order to live with him, and that at the time that she paid him the five hundred dollars, she did so under the idea that he would add thereto, and put her. in business.

The defendant farther resisted the claim, on the ground that the plaintiff had already brought suit against him for the five hundred dollars she had paid to him. There was judgment against him, and he has appealed. It does not appear to us that the District Court 'erred.

The defendant appealed to the conscience of the plaintiff, and she answered that the excess of the sum for which the mortgage was given, was a remunatory donation as she believed ; and that this was also the idea of the defendant, results from the circumstance of his not pretending that this excess was intended as an usurious allowance for the loan.

Indeed, the plaintiff’s answer shows that the five hundred dollars were not loaned by her, but placed as a deposit in the defendant’s hands; and her answrer further shows, that she was entitled to some compensation for the sacrifices she had made for the defendant at his request. The suit which the defendant alleges has been brought against him for the money deposited, is not pleaded as an exception of litispendencia; and as it is not pretended that judgment was had in it, it cannot be admitted as a bar. Judgment affirmed.