The judgment of the court was pronounced by

The defendants, sureties of Winters, city marshal of Lafayette, applied to the governor for their discharge, which was opposed by the plaintiff, on the ground that Winters had received the price of the adjudication of certain lots in Lafayette, purchased by the plaintiff, and that his title on a monition haking been annulled, the purchase money ought to have been returned to him, and that the parties were liable on their bond for the default of Winters in retaining it. The application and opposition were referred by the govvernor to the First District Court. A supplemental petition was afterwards filed, by which judgment was asked against the defendants for the sum of $1200, for damages alleged to have been sustained by the plaintiff through the neglect of duty of Winters, in making the sale, by reason of which the sale to him was annulled. To this the general issue is pleaded. The plaintiff was non-suited, and he has appealed.

It appears to us that there is no evidence of the damage sustained by the plaintiff through the acts of Winters.

In relation to the remedy of the plaintiff against the defendants, as sureties, for the return of the purchase money alleged to be paid by him, it is still open to him. In the present case, if the sheriff’s deed was offered to prove the fact of payment, and refused to be admitted by the judge for that purpose, the plaintiff ought to have excepted to the decision of the court, or have in some form reserved the point. The sheriff’s deed was admitted by the judge as evidence of res ipsa only, and no exception was taken by the plaintiff to this limited operation of it as evidence. Whatever may be our opinion of the correctness of the view of the district judge on this question, we cannot remand the case on that account, and thus amerce the defendants in costs. The non-suit must therefore stand. Judgment affirmed.