
    
      PEYTAVIN vs. PALOE.
    
    Appeal from the court of the second district.
    A demand of $640 and expenses of protest will authorise a judgment for $646.
   Porter, J.

delivered the opinion of the court. This action was instituted on two promissory notes. The defendant pleaded the general issue and payment; there was judgment against him and he appealed.

He assigns as error, apparent on the record, that the plaintiff only demanded $640 with interest and costs in the petition, and that the court below condemned him to pay six hundred and forty six dollars with costs and interest.

But a recurrence to the petition shows this objection to be unfounded, for the plaintiff did not demand six hundred and forty dollars alone, but prayed that the defendant might be decreed to pay him this sum together with the expenses of protest.

The appellee complains there was error in condemning him to pay the costs for having failed to prove an amicable demand. If there was, the case is not brought up in such a manner as to enable us to give him relief. There is neither facts agreed on by counsel, or made out by the judge, nor special verdict, nor certificate of the clerk, or any thing equivalent thereto; we cannot therefore reverse the judgment on a matter which depended on the evidence taken on trial. Moulon vs. Brandt's syndics. 10 Martin, 669.

East’n District.

April, 1823.

Moreau, for the defendant.

We consider the appeal as one evidently brought up for delay, and we do therefore order, adjudge and decree that the judgment of the district court be affirmed with damages at ten per cent on the amount of the debt, and that the appellant pay the costs of this appeal.  