
    ABAT vs. WILTZ.
    Eastern Dist.
    
      February, 1840.
    APPEAL PROM THE COMMERCIAL COURT OF NEW-ORLEANS.
    The appeal considered as frivolous, and judgment affirmed, with ten per cent, damages.
    This is an action against the maker, on several of his promissory notes, endorsed in blank by the payee. The defendant admitted his signature, but denied that he was indebted to the plaintiff, and that he was not the legal holder of the notes, but that they belonged to L. Millaudon, against whom he might have and had a good defence. He propounded interrogatories tó the plaintiff, if he had not said he was not the owner, but that Millaudon was the owner of said notes. The plaintiff took no notice of them.
    On the trial, the defendant offered Millaudon as a witness, to make out his defence set up in the answer, which was objected to, on the ground that such a defence would avail nothing. The court sustained the objection, and the defendant excepted.
    There was judgment for the plaintiff, and the defendant appealed.
    
      jBenjamin, for plaintiff,
    prayed the affirmance of the judgment, with ten per cent, damages.
    
      Canon, contra.
   Morphy, J.,

delivered the opinion of the court:

The defendant being sued as drawer of several notes, answers, that plaintiff has no interest in them ; that they belong to Laurent Millaudon, against whom he has a good defence. Plaintiff’s silence, on the interrogatories put to him to prove his want of interest, authorized defendant to make out any just defence he might have had against Millaudon ; this he has not done. Appellee prays for damages on the ground that this appeal is frivolous and taken for delay ; we cannot but view it in the same light.

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