
    Thomas Lay v. Jacob Irwin.
    tlamages will not be allowed, where Hie appellee prays for and obtains an amendment of the judgment.
    Appeal from the District Court for the parish of Claiborne, Campbell, J.
   Martin, J.

The defendant is appellant from a judgment rendered against him on his three promissory notes. He has built a hope of having his case remanded on the refusal of the lower court to grant him a continuance, and has drawn our attention to his bill of exceptions thereto, by which it appears that a continuance was refused on the ground of the insufficiency of the affidavit, because it did not show either that the evidence expected to be obtained was material, that due diligence had been used to procure the required testimony, or that the application was not made for delay. It does not appear to us that the continuance was improperly refused.

The plaintiff and appellee has prayed that the judgment may be so amended that the sum of one thousand dollars due the 1st of March, 1839, bear ten per cent interest, and the sum of three hundred dollars due the 21st of October, 1839, bear ten per cent interest, and that he may have damages for a frivolous appeal. The plaintiff is entitled to interest at the rate of ten per cent on the note of one thousand dollars payable on the 1st day of March, 1839, that rate of interest being expressed on the face of the note; the judgment gives interest without stating any rale, which is evidently a lapsus calami. He is also entitled to interest on the sum. of throe hundred dollars, the balance due him on another of the notes, although no interest he mentioned m the note, because the money is due for the purchase of a tract of land, not indeed at ten per cent as he requires, hut at five per cent. The plaintiff and appellee having availed himself of the defendant’s appeal, and having obtained an amendment of the judgment in his favor, is not entitled to damages.

Boysden and Lawson, for the plaintiff.

Crain, for the defendant and appellant.

It is therefore ordered that the judgment of the district court he reversed; and that the plaintiff recover from the defendant the sum of twenty-three hundred dollars, with interest at ten per cent on the sum of one thousand dollars from the first day of March 1838; and interest at the same rate on the sum of one thousand dollars from the first of March 1839; and lastly, interest at the rate of five per cent on the sum of three hundred dollars from the first of March 1837, with costs in both courts,  