
    
      SHANNON vs. BARNWELL & AL.
    
    Appeal from the court of the first district.
    The appeal will not be suffered to be dismissed, if it clearly appear to have been taken for delay.
    The plaintiff sued for the recovery of a sum three hundred dollars, loaned to the defendant, with interest, and recovered accordingly.
    The defendant Barnwell appealed after the signing of the judgment, and took no measure to provide a statement of facts. The plaintiff moved to have the judgment affirmed with damages, under the 12th section of the act organizing the supreme court; and the defendant moved to dismiss his appeal.
    
      Hennen for the appellant.
    A plaintiff may always dismisses suit: the appellant is a plaintiff, and therefore, if he find it convenient, may dismiss his appeal.
    The plaintiff and appellee is not entitled to damages. There were two defendants and one only appealed: the judgment might therefore have been executed on the defendant who did not appeal. Besides no appeal could be regularly had: the original demand did not exceed three hundred dollars. Interest and costs have indeed raised it above that sum. But, in ascertaining the jurisdiction of this court, interest and costs ought not to be counted; the act of 1813, c. 12, expressly excludes costs.
    
      Depeyster for the appellee.
    If one of the defendants in this case by a frivolous appeal postponed the execution of a judgment fairly obtained against him, by an appeal made with no other view than to obtain a delay, he ought to be muleted in damages; for independently of the injury which the appellee may sustain, in consequence of the insolvency of the other defendant, he is put to trouble and expence in attending to the appeal.
    
      The interest which accrued on the money lent, at the inception of the suit, was equally due to the plaintiff as the principal, and made part of the matter in dispute, which exceeded the sum of $300, by the amount of the interest.
    The defendant who has appealed cannot avert the consequences of his appeal by saying he had no right to appeal. This would be taking advantage of his own wrong.
    Neither can he, for the same reason, avoid the penalty of the law by the dismissal of an appeal, to which it clearly appears he resorted for the sole purpose of delay. He could not have had any other advantage in contemplation. No statement of facts, special verdict, or bill of exceptions, comes up with the record. We are therefore entitled to an affirmance of the judgment with damages. Fromentin & al. vs. Prieur 3 Martin, 225. Jennings vs. brig Perseverance, 3 Dallas, 336.
   Mathews, J.

delivered the opinion of the court. The court ought not in any case to permit the appellant to dismiss his appeal, where it appears evident that such an act on his part will do an injury to the appellee, by depriving him of a right which can only be maintained and enforced by the appellate court. We have on several occasions dismissed appeals, which operates an affirmance of the judgment in the inferior courts so far as to authorise executions on them. But this has never been done, when it did appear clearly that the appeal was taken for the sake of delay only. The difficulty is to ascertain this truth, where a full statement does not accompany the record; yet, if it is not attempted to be done, the provisions of the 12th section of the act cited, may in every instance be defeated by the appellant, who chuses to delay, not praying his appeal until after the time prescribed by law for making a statement of facts. This circumstance, which occurs in the present case, together with the presumptive correctness which attaches to every judgment of competent tribunals, until the contrary is shewn, is in our opinion sufficient to authorise the court to give force and efficacy to the law, by affirming the judgment with damages.

The appellant’s counsel further contends that he has caused no delay to the appellee’s recovery of his debt, because the sum or matter in contention is below the amount on which appeals are authorised. Without troubling ourselves to remark, that this objection comes with an ill grace from him who has obtained the appeal, it may be observed, that the record clearly shews that the matter in dispute, together with the interest, exceeds three hundred dollars.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with five per centum on the amount for damages, for the delay caused by the appeal.  