
    
      PUGH vs. ERWIN.
    
    Appeal from the court of the fourth district,
    if the record do. s not enable the court case, the ap* ><⅛-X'mmWith damages
    The appei* lant cmnot discontinue his cause m brought'up by the appellee
   Porter, J.

# delivered the opinion of 1 eourt. This case has been brought up by the appellee, who prays that the judgment of the court below be affirmed with ten per centum damages. °

The appellant resists this on two grounds: first, because there is neither statement of facts, , c ■ , . , , bill ox exceptions, nor any thing on record by which the correctness of the decision of the tribunal of the first instance can be examined.

But this seems to us rather a reason why damages should be given: for if the defendant appealed, when he knew the record would not enable this court to examine the case, he could not have done so to have any errors in thejudg-meat corrected. It must have been for delay, ‘ 12 Martin. 292, 295, 390, 1st. n. s. 575, 576.

Porter for the plaintiff, Morse for the defendant.

The second ground is also insufficient to save him from the penalty which the appellee prays for. In support of it the 595th article of the code of practice has been relied on, which states that if the appellant wishes to withdraw his appeal, before he has cited the appellee, he may be allowed to do so on motion in the lower court. To enable the appellant to profit by this provision, he should have shewn that he had applied to the court below for leave to discontinue; and that permission had been given him.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs in both courts, and ten per centum damages on the amount of said judgment.  