
    FLORANCE VS. ALSTON.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING.
    When there is no amicable demand proved, and the want of it is specially-pleaded, the judgment will not be affirmed with damages, although the appeal is frivolous.
    So, where the defendant appeared and pleaded the want of an amicable demand, but had no valid defence, he was required to pay all the costs in the inferior court, after his first appearance there.
    This is an action on a promissory note under protest. The defendant appeared, admitted his signature, and averred, that there was no legal or valid consideration given for his note, but that the plaintiff received it on an usurious consideration; and that there has been no amicable demand. He prays that the suit be dismissed.
    On the trial, there was no proof of an amicable demand, except the protest of the notary. The defendant offered no evidence to support his defence.
    There was judgment for the plaintiff, for the amount of the note sued on, together with interest and costs. The defendant appealed.
    
      Lockett, for the plaintiff.
    
      MlMillen, contra.
    
   Rost, J.,

delivered the opinion of the court.

This action is upon a promissory note. Judgment was given in favor of the plaintiff in the court below, and we would affirm it with damages, were it not that no amicable demand is proved to have been made before the institution of the suit, and that the want of it is specially pleaded.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, annulled and reversed, and that the plaintiff recover from the defendant the sum of one thousand and twelve dollars, with legal interest on the sum of one thousand and nine dollars, from the 2d of October, 1837, till paid, and the costs of the District Court, made after the first appearance of the defendant, inclusively, the remaining costs in the District Court, and the costs of this appeal, to be paid by the plaintiff and appellee.  