
    
      CRAIN vs. ROBERT.
    
    West’n District,
    
      Sept. 1824.
    If the defendant's plea be not supported by evidence, and he appeals, damages will be given against him.
    Appeal from the court of the sixth district.
   Mathews, J.

delivered the opinion of the court. This is an action founded on a promissory note, the payment of which is secured by mortgage on certain property, as set forth in the plaintiff’s petition. The answer of the defendant admits the execution of the note, and pleads in avoidance a failure of the consideration for which it was given.

The plaintiff obtained judgment for the amount by him claimed, and the defendant appealed.

The record contains no evidence in support of the appellant’s pleas. The appeal is bro’t up by the appellee, who claims damages on account of its having been taken for the sake of delay, &c. We have been unable to discover any thing in the case, which induces us to believe that it was taken for any other consideration.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with ten per cent damages on the amount thereof, and that the appellant pay costs in both courts.  