
    FULTON'S vs. GORTON'S EXECUTOR.
    APPEAL PROM THE COURT OP THE SIXTH DISTRICT, POR THE PARISH OF RAPIDES, THE JUDGE THEREOF PRESIDING.
    Damages as for a frivolous appeal, will not be allowed on the affirmance of judgment dissolving an injunction, which already gives ten per cent, interest, and twenty per cent, damages.
    This is an injunction case. The plaintiff alleges, that at the sale of Gorton’s estate, he became the purchaser of a slave man for the price of one thousand four hundred and eight dollars, that he has since discovered said slave was subject to the redhibitory vice of a runaway; that he has been in the habit of running away, and is so worthless, on this account, that had he known of the vice he would not have purchased ; that he has tendered said slave to the executor of Gorton, who refuses to receive him back, but is proceeding with an order of seizure and sale to enforce the price. He prays for an injunction to stop the sale, and that the defendant be compelled to take said slave back, and return him his notes.
    The defendant denied there were any redhibitory defects in the slave, and averred that he was only sold with warranty of title, that there was no fraud or concealment. He denies there was any tender of the slave, and prays that the injunction be dissolved with damages.
    On the trial, the plaintiffs offered no evidence. The defendant proved, that the fee for defending this suit would be from one hundred and fifty to two hundred dollars.
    There 'was judgment dissolving the injunction, with ten per cent, interest, and twenty per cent, damages on the sum enjoined. The plaintiff appealed.
    
      Dabney, for the plaintiff, submitted the case.
    
      Hymns, contra.
   Simon J.,

delivered the opinion of the court.

This is a redhibitory action, instituted by way of injunction. The slave in question, was purchased without warranty of any kind except as to the titles, and the plaintiff has produced no evidence whatever in support of any of his allegations. This appeal was clearly taken for delay, and had it not been that the District Court, in dissolving tire injunction, allowed the defendant ten per cent, interest, and twenty per cent, damages on the amount of the judgment enjoined, we should have felt disposed to mulct the appellant in the full amount of damages allowed by law, as for a frivolous appeal.

We deem it unnecessary to notice the bill of exceptions found in the record, as it is perfectly clear that a party cannot demand and be allowed a trial by jury, during the progress of the trial of a cause before the court.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  