
    BANKS vs. DOW.
    Eastern Dm.
    
      March, 1833.
    APPEAL PROM THE COURT OP THE FIRST DISTRICT.
    If the law and the facts of a case are free from doubt, damages will he allowed for a frivilous appeal.
    
      Preston, for appellant.
    
      Post, contra.
    1. The defendant admits his signature. The signature of the endorser, and the date of the transfer, are proved by the witness.
    2. The account of the defendant is not proved, and if it was, cannot be allowed, against the plaintiff.
    3. The appeal was taken for delay, and the judgment of the District Court ought to be affirmed with ten per cent, damages and costs.
    
      if the law ana facts of a case are free from doubt, damages win be allowed for a frivolous apPcal-
   The facts of the case are stated in the opinion of the court, delivered by

Portee, J.

This is an action on a promissory note, executed by the defendant, in favor of one John C. Dunliere.

The petition avers that the payee endorsed and transferred this obligation to the plaintiff.

The answer admits the execution of the note, but denies that Dunliere ever endorsed it. It further avers that the endorsement, if ever made, was subsequent to the time at which the obligation was due, and that it is subject in the hands of the petitioner to all the equity it would be open to, if suit was brought by the payee.

It is proved that the payee did endorse the note previous to the time it fell due.

The district judge gave judgment against the defendant for the amount claimed in the petition, and he appealed,

The instrument sued on appears to be negotiable; we are ^ unable to see on what ground the defendant appealed. The ° ]aw and the facts of the case appear to us free from doubt, and -*■ we are compelled to accede to the prayer of the appellee, that the judgment below should be affirmed with damages.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, and ten per centum damages for the frivolous appeal.  