
    GIBSON vs. GILL.
    Western Dist.
    Oct. 1838.
    APPEAL PROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OP RAPIDES, TIIE JUDGE THEREOF PRESIDING.
    Where an appeal appears to be taken solely for delay, the judgment will be affirmed, with such damages, as the court in its discretion may decree, not exceeding ten per cent.
    This is an action to recover the sum of one thousand one hundred and eighteen dollars,' for the lease of a plantation by the plaintiff to the defendant, for the term of one year, commencing the 1st of January, 1834. When the lease expired, the price remaining unpaid, the plaintiff instituted suit, and sequestered the crop. The defendant excepted to the sequestration, and prayed that it be dissolved and that the suit be dismissed, as having been prematurely brought. He then plead a general denial, and set up a claim against the plaintiff of five hundred dollars, &c.
    There is no evidence in the record, but judgment was rendered against the defendant, and after an unsuccessful
    
      Where an appeal appears to be taken solely for delay, the judgment will be affirmed With such damages as the court in its discretion may decree, not exceeding ten per cent.
    attempt to obtain a new trial, on the ground of surprise, he appealed.
    
      Winn, for the plaintiff,
    prayed that the judgment of the inferior court be affirmed, with ten per cent, damages and costs.
    
      Barry and Bryce urged a new trial as prayed for, because the defendant was taken by surprise, and was, consequently, wholly unpre'pared with his testimony.
   Carleton, J.,

delivered the opinion of the court.

This case comes before us without any statement of facts, bill of exceptions, or any other matter' that will enable us to examine it upon its merits.

The appellee, in his answer, insists-that the appeal is frivolous and taken merely for delay, and prays that the judgment may be affirmed, with ten per centum damages. Code of Practice, art. 907.

We think with the appellee’s counsel, that the appeal was taken merely for delay ; but as the judgment carries five per centum from judicial demand, it appears to us, that five per cent, by way of damages, may well answer the purposes of justice.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with five per centum damages on the amount of said judgment, with costs.  