
    Cantrelle & Al. v. Percy.
    The indorser cannot object to the plaintiff’s evidence, showing that the signature of the maker of the note was erased through error, when he lias not set up this defence in. his answer; although this circumstance was not alleged in the petition.
    "When an appeal appears to be taken solely for delay, judgment will be affirmed with the maxi* mum of damages. — 8 L. 101, and cases there noted.
    Appeal from the parish court for the parish and city of New Orleans.
    This is an action against the indorser of a note, signed “ Oahoche.”
    The defendant admitted his signature, and averred that his indorsement had been procured under certain deceptive circumstances, and the note after-wards detained and passed away through fraud; and was not received in the usual course of business.
    On the trial, the plaintiff produced a witness to explain the erasure of Oaboehe’s name, and to show it had been erased in error. This was objected and excepted to, as there was no allegation in the petition to this effect. There was no attempt to sustain the defence; and judgment was rendered for the plaintiffs, from which the defendant appealed.
    Canon, for the plaintiffs,
    prayed the affirmance of the judgment, with ten per cent, damages.
    
      BoseKus contra.
   Simon, J.

delivered the opinion of the court.

This suit was brought against the indorser of a promissory note of hand. The defendant avowed his signature to the note, and pleaded certain matters in avoidance of the plaintiffs’ action, which are entirely unsupported by evidence. Judgment was rendered against him, and he appealed.

On the trial of the cause, plaintiffs introduced a witness to show that the signature of the maker of the note was erased through error. The testimo[521] ny was objected to by the defendant’s counsel, on the ground that there was no averment in the petition that said signature had been erased through error; hut the judge admitted the evidence, and the defendant took a hill of exceptions.

The parish judge did not err. The note is declared upon in the petition as if the signature of the maker had not been erased, and is annexed thereto; the object of the evidence was merely to explain the reason why the drawer’s signature appeared to have been erased, when the note was produced; and if any material circumstance existed so as to show that the erasure was to effect or destroy the liability of the indorser, it was his duty to avail himself of it in his answer.

On the whole, we think this appeal was taken solely for delay, and that the plaintiffs are entitled to the damages by them prayed for in their answer.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs, and with ten per cent, damages as for a frivolous appeal.  