
    BRUMFIELD vs. CUNNINGHAM.
    Eastern Dist.
    January, 1840.
    APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. TAMMANY, THE JUDGE THEREOF PRESIDING.
    Where the record is brought up by the appellee, and there does not appear to have been any valid defence, the appeal will be considered as taken for delay, and the judgment affirmed, with ten per cent, damages.
    In this case there was a verdict and judgment against the defendant, and he prayed an appeal, but failed to bring up the record.
    The appellee filed an exemplification of the record after the return day, and prayed for the affirmance of the judgment below, with ten per cent, damages, as for a frivolous appeal. ' -
    
      Hennen,' for the appellee.
   Morphy, J.,

delivered the opinion of the court.

The defendant being sued on a promissory note, averred that he had given it in payment of a slave bought of the heirs of the late Jacob Ott; that the plaintiff had no right or interest in the note, the same having been collusively and fraudulently put in his hands by the real owners, the heirs of Oft, for the express purpose of depriving him of some equitable grounds of defence, which he sets forth at full length in his answer. In order to prove plaintiff’s want of interest in the note, defendant propounded interrogatories, the answers to which prove conclusively that plaintiff is a bona fide holder for a valuable consideration. A verdict being rendered in favor of plaintiff, defendant made a motion for a new trial, which was overruled; he then took the present appeal.

The record was brought by the appellee, who prays for the affirmance of the judgment, with damages.

Affidavits for continuance at two successive terms of this court, and their neglect to bring up the record, coupled with the absence of any valid defence, as to this holder, furnish abundant evidence of the nature of this appeal.

It is, therefore, ordered, adjudged and decreed, that the ' jo judgment of the District Court be affirmed^ with costs, afid ten per cent, damages on the amount of the note sued on.  