
    LANUSSE vs. FREDERICK ET AL.
    Eastern Dist.
    
      May, 1840.
    ATPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS.
    In this case, the points relied on in the defence are untenable, and the appeal frivolous. Judgment affirmed, with five per cent, damages, and bearing five per cent, interest.
    This is an action against the maker and endorsers of a note.
    The defendants pleaded a general denial; and averred, that said note was given for the price of property in Lafayette, of which they are in great danger of eviction, by Poultney’s heirs ; suit having been commenced against part, and threatened against all the possessors of property within the limits of the Poultney claim ; and that the consideration has failed, and the plaintiff took said note, with, full knowledge of this, after it was due.
    There was no proof offered in the defence, at the trial. The plaintiff had judgment, and the defendants appealed.
    
      Quemper, for the plaintiff
    Micou, contra.
   Simon, J.,

delivered the opinion of the court.

This is a suit on a promissory note, against the maker and first endorsers thereof. A special defence is set up by the defendants, but no evidence has been adduced to support it. It is, however, contended, before us, that the demand of payment is not sufficient, as the notary has not alleged that he presented the note for payment; and that there is no evidence of the endorser’s having received due notice of protest, as the notary says that he served the notice on Hyde & Goodrich, through Mr. Goodrich. An examination of the record has convinced us that these points, which do not appear to have been made in the lower court, are untenable; and that the damages asked as for a frivolous appeal, ought to be allowed. .

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs in both courts, and five per cent, damages.  