
    FITZ vs. CAUCHOIX.
    Appeal from the court of the first district.
    Nothing can be assigned as error apparent on the face of the record, that may be cured by evidence legally introduced.
    Alter suffering judgment by default, the defendant who was legally cited, cannot assign as error apparent, on the record, the want of evidence to establish the facts alledged in the petition.
   Matthews, J.

delivered the opinion of the court. This suit was brought on a promissory negotiable note, by the endorse, against the endorser. The petition contains all necessary allegations of legal demand of payment from the maker of the note, refusing or neglesting on his part to pay, protest and notice to the endorser. The defendant suffered judgment to be taken by default, which war afterwards confirmed by the court below, and he appealed.

There is no regular statement of facts in the case, or bill of exceptions nor does it appear that any testimony or proof was taken down in writing. There is only a certificate of the district judge, that the record, as if sent up, contains all the matters on which the case was tried, in the first instance. This being the situation of the cause, the counsel for the appellant assigns, as errors apparent on the face of the record : 1st. want of proof of the signature of the defendant as endorser. 2. That there was no demand front the drawer of the note. 3. No proof of notice to the endorser, &c. All these things might have been supplied by testimony, and we have repeatedly determined that matter, which may have been shewn by evidence in the court below, does not form legal ground for an assignment of errors apparent on the record of proceedings, when a cause is not aided by a statement of facts, &c. But ’should h be admitted that the certificate of the judge in the present case produces, in some measure, the effect of such a statement: still we are of opinion there is no error in the judgment of the district court. Every thing necessary to entitle the plaintiff to recover, is alleged in his petition. These allegations were not denied by the defendant. After being duly cited to appear in court, he made default and the court below was correct in considering the facts, alleged by the petitioner as confessed. The demand being liquidated required no testimonial proof to establish its true amount. The judgment obtained thereon by default, would have become final by a sufficient lapse of time, without any further interferance of the court. Acts of 1805.

East'n District.

March, 1824.

Preston for the plaintiff, Seghers for the defendant.

Upon the whole, we are of opinion that this appeal is frivolous and taken for delay, only.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed, with costs ; and it is further ordered, adjudged and decreed, that in addition to said judgment, the plaintiff and appellee do recover ten per cent on the amount thereof, as damages for this frivolous appeal.  