
    PARKHILL vs. CALDWELL.
    Eastern Dist.
    
      May, 1840.
    APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.
    Where the appellee has the judgment corrected in part, it may be affirmed with costs, for such parts as are not altered.
    The appellee cannot have damages as for a frivolous appeal, when he has the judgment corrected in any part himself.
    This is an action against the maker of a note payable to his own order, nine months after date, with six per cent, from its date, until paid. The defendant pleaded a general denial. There was judgment for the amount of the note, with eight per cent interest, from maturity until paid. The defendant appealed.
    
      Peyton, for the plaintiff,
    asked that the judgment be amended so as to give but six, instead of eight per cent, interest; and that it be affirmed, as to the other points, with ten per cent, damages.
    
      Elmore and King, for defendant.
   Morphy, J.,

delivered the opinion of the court.

This is a suit brought on a promissory note of seven hundred and thirty-six dollars and thirty-seven cents, bearing interest at the rate of six per cent, per annum, from its date, to wit: the 7th of April, 1838. The general issue was pleaded ; the court below gave judgment for the amount of the obligation sued on, with eight per cent, interest thereon, from the 10 th of-January, 1839. The defendant took this appeal, in which the plaintiff joined, in this cCurt, by praying that the decree be amended so as to allow the interest as stipulated in the note itself.

This case presents only a question of costs, which must be decided by article 888 of the Code of Practice. It provides that, “if the appellee has cause to complain of the judgment appealed from, he may, without appeal on his part, state in his ¡answer the points on which he thinks he has sustained wrong, and may pray that the judgment be reversed, with respect to them, and confirmed with costs on the 1'eSt.”

A computation of the interest, as given by the court below, and of that mentioned on the face of the instrument sued on, up to the date of the judgment appealed from, shows that at the time the appellee had cause to complain of it, although on a longer run of both rates of interest, that allowed -would be more beneficial to him than that he is entitled to by the tenor of defendant’s note.

The appellee has prayed for damages for the frivolous appeal; as he has availed himself of it to have the judgment amended, we do not think that any should be awarded to him.

It is, therefore, ordered, that the judgment of the Commercial Court be affirmed, with costs as to the amount déereed to plaintiff, but that the interest thereon shall run at the rate of six per cent, per annum, from the 7th of April, 1838, until paid, instead of that allowed by the judgment appealed from.  