
    M'CABE vs. GENTES.
    APPEAL PROM THE COURT OP THE PIRST DISTRICT.
    Costs, awarded on leave to amend the pleadings, are not required to be paid lip before the suit proceeds, as in case of non-suit or discontinuance.
    Damages for a frivolous appeal, will not he given, when it does not appear the party has suffered any from the delay.
    This case commenced by an order of seizure and sale, on a mortgage retained for the price of a slave, evidenced by the defendant’s note.
    The defendant took a rule to set aside the proceedings, on the ground that no copy of the petition in the French language had been served on him which was his vernacular tongue. On the trial the plaintiff obtained leave to' amend in this respect, on payment of ebsts up to this time. He was proceeding with his seizure, when he was arrested by a second rule, to have the order of seizure set aside on the ground that the costs of the amendment had not been paid. This rule was discharged and the defendant appealed.
    
      M‘Millen, for the plaintiff,
    prayed that the judgment discharging the rule, be affirmed with ten per cent, damages.
    Defendant P. P.
   Morphy, J.

delivered the opinion of the court.

(toiits, award-fed on leave to amend the not^equired^to fore*11 theP’ suit proceeds, as m or discontinu-

damages for peaVwillnotiie loeTnot'appear suffered ty any from the delay,

The plaintifl' sued out an order of seizure and sale of a slave belonging to defendant, on an act importing a confession judgment. The latter took on him a rule to show cause why it should not he set aside on the ground that the petition had not been served on him in the French language, his mother tongue. The judge made the rule absolute, but with leave to plaintiff to amend his petition by filing a copy of it in French, and- upon his paying costs ftp to the time of the amendment. The petition in French having been filed and service thereof having been accepted by defendant, a few days after, he took another rule to set aside the order of seizure and sale on the ground that plaintiff had not paid the costs which he had previously b’een decreed to pay, and that no' further proceedings could be had in the suit. This rule being' discharged, the defendant appealed,

The Judge decided correctly; the proceedings instituted by plaintiff had not been discontinued nor had he been non-suited; on the contrary he had obtained leave to amend, which be did with a view to proceed with his case ; C. of Pr., arts, 492, 535.' — 7 La. Rep., 413. The appellee has prayed for damages for the frivolous appeal. We would not hesitate to allow them, were it not that oil examining the authentic act annexed to the petition, we find in it a stipulation by which the slave' mortgaged is to remain in the possession of the plaintiff, with the right to enjoy his hire and services for the use of the money loaned to defendant, to wit: $400; the amount of the iiote sued on; until the same shall be paid. This accounts for the extraordinary forbearance of the plaintiff who brought suit only in April, 1839, although defendant’s note fell due in August, 1836. Under such circumstances, Und when plaintiff is already receiving much more than the highest rate of conven-interest, we cannot say that he has suffered any damages by the delay consequent on the appeal.

The judgment of the District Court is therefore affirmed with costs.  