
    John F. Johnson v. William Bailey.
    Damages will not be allowed for the delay occasioned by an appeal, unless prayed for by the appellee.
    Appeal from the District Court of Carroll, Willson, J.
    
      T. N. Peirce, for the plaintiff.
    
      Selby, for the appellant.
   Simon, J.

The defendant is appellant from a judgment which condemns him to pay the amount of the note upon which he is sued. In his answer he pleads, that the plaintiff is not the owner of said note ; that it belongs to another person who has notified him not to pay it to the plaintiff, and that he has a right to plead this defence under the laws of Mississippi, where the note was executed, and where the parties reside.

it was shown, however, on the trial below, that, although it is true the payee of the note sued on, once notified the maker not to pay its amount to the plaintiff, as the latter had not complied with the • terms of the transfer, said payee, about nine months afterwards, withdrew his notice, and recognized in writing the right of said plaintiff to the ownership of said note. The note sued on, which is found in the record, appears to have been regularly endorsed by the payee, the signature of the latter has been proved, and we are unable to see any reason why the judgment appealed from should not be affirmed.

The statement made by the appellant’s counsel in his brief, that the note sued on was not filed in the suit, that it was not offered in evidence, and that there is no testimony upon which to base the judgment, is incorrect. The note is included in the statement of facts under the letter A.; it is therein identified with the testimony of the witness who was called to prove the signature of the endorser; said statement of facts is certified by the District Judge, as containing all the testimony taken down by him, by consent of the parties on the trial below; and the clerk’s certificate shows that the record is complete.

This appeal was clearly taken for delay, and we think the appellant should have been bound to pay the appellee the maximum of the damages allowed by law in such cases, had they been prayed for by the latter.

Judgment affirmed.  