
    WORSLEY vs. BARRETT ET AL.
    Eastern Dist.
    February, 1840.
    APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.
    Where the defence set up is entirely disproved by the plaintiff, and the defendant appeals, he will be condemned to pay damages as for a frivolous appeal.
    But where the debt carried ten per cent, interest, only five per cent, damages were decreed.
    This is an action against the endorsers of a promissory note. The endorsements sued on were in blank, but the plaintiff made a special endorsement below to one ffm. Brand. On the trial, Brand was offered as a witness to show that this endorsement was made to him merely for the purpose of collection ; that the plaintiff was the true owner; and the defendants promised to pay the note. This testimony was excepted to, on the ground that, by an-inspection of the note sued on, the plaintiff had parted with his interest therein. The testimony was received, and there was judgment for the plaintiff. The defendant appealed.
    
      Caswell, for the plaintiff.
    
      Sterrett, contra.
   Morphy, J.,

delivered the opinion of the court.

The defendants are sued as endorsers of a promissory note. The defence was, that the plaintiff could not recover on the note, having parted with his interest therein, by a special endorsement of it to one Wm. Brand. The latter appeared as a witness, and testified that he was only an agent for the collection of the note, which was the property of plaintiff; that, since its maturity, the defendants have repeatedly promised to pay this debt to the plaintiff. The appellee has prayed for damages; we think that he is entitled to them ; but as the note already bears ten per cent, per annum interest, we shall grant only five per cent, in damages on the amount of the debt.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs, and five per cent, damages.  