
    DELININICO & CO. vs. TERRY.
    APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OP NATCHITOCHES, JUDGE KING OF THE FIFTH PRESIDING.
    Obligors are bound on a note or obligation given to take up another’s notes, as soon as they are over due, and remain unpaid.
    A show of defence will not, alone, protect the appellant from damages, as for a frivolous appeal.
    This is an action against the principal and surety, on their obligation for five hundred and seventy dollars, given to take up a note for about this sum, due and given by the present plaintiff’s, and which had been transferred. The notes were suffered to be protested, and this suit was instituted on the note or obligation given to secure their payment. The defendants to the suit pleaded a general denial.
    The following is the note sued on. For value received, I promise to pay Delininico & Co’s note in favor of John H. Mahle, secured by mortgage, due December 23d, 1838, transferred by me to A. L. Deblieux, amounting in all id a*30111 five hundred and seventy-six dollars; to wit, seventy dollars on my account and balance on account of Mr. E. Terry.”
    
      Natchitoches, August 23d, 1838.”
    “ C. A. BULLARD.”
    “Ephraim Terry, security.”
    This note became due and was regularly protested for nonpayment. All the signatures were proved.
    There was judgment in favor of plaintiff, for the sum of five hundred and forty-eight dollars and eighty cents, and against defendants in solido. Terry alone appealed.
    
      Pierson and Carr,
    
    prayed the affirmance of the judgment, with ten per cent, damages.
    
      Rothrock, contra,
    submitted the case in written points.
   Morphy, J.,

delivered the opinion of the court.

The plaintiffs allege, that defendants, C. A. Bullard as principal, and Ephraitn Terry as surely, undertook and obligated themselves, for a valuable consideration, to take up and pay a note drawn by them (the plaintiffs) to the order of ‘JpbH ILMahle, maturing the 23d of December, 1838. That ■ ’ itt^idaijoh of their engagement, they suffered said note to be fprotester! at its maturity, for want of payment, and refuse now’ifo' pay its amount, for which they as drawers have __ become liable unto the holder, A. L. Deblieux. The defend-v aht’s pleaded the general issue, and denied their liability. There was judgment for the plaintiffs, and E. Terry aloue appealed.

The appellant has contended that plaintiffs have no right of action against him, because they had not at the inception of this suit paid the note held by Deblieux ; that he has not been legally put in default, and that there was no time fixed in' his obligation to pay the note drawn by plaintiffs. This can hardly be considered as a serious defence. It is clear that the plaintiffs right of action accrued so soon as the note was protested for non-payment; and the record shows that its amount was demanded of the appellant, who admitted his liability. We have frequently held, that a show of defence in this court will not protect the appellant from damages for a frivolous appeal.

A show of defence will not, alone, protect the appellant from damages as for a frivolous appeal.

It is, therefore, ordered, that the judgment of the District Court be affirmed, with costs and ten per cent, damages.  