
    No. 1970.
    Jacob Hawkins v. B. Wiel and J. Madison Wells.
    The hurdon of showing a failure of consideration of a promissory note falls on the party who alleges it, and if the maker sots up this defense against the holder in a suit to enforce it, the failure to make good his defense, by evidence, on trial in the lower court, is sufficient to authorize the appellate court to give damages against him for a frivolous appeal.
    APPEAL from the Sixth District Court of New Orleans. Cooley, J.
    
      Kawlcins & Msli, for plaintiff and appellee. Cotton <& Levy, for defendant and appellant.
   Taliaferro, J.

The plaintiff sues Wiel as maker, aud Wells, as indorser, of a promissory note for two thousand dollars, made payable to Wells ninety days after date, being dated twenty-sixth of December, 1866, and stipulating interest at eight por cent, per annum from date. On the petition is indorsed the following :

“ I waive citation and service of petition in this caso — waive domicile and notice of protest.”

(Signed) “ J. Madison Wells.”

The defendant Wiel alone answered. He denies that the plaintiff is the Iona fide holder in Ms own right of the note sued on, which being non-negotiable, he sets up an equitable defense against, averring a failure of consideration.

Judgment was rendered in favor of the plaintiff for the amount sued on as to Wiel, and against him as to Wells, the case in regard to the latter being dismissed as of nonsuit.

The appeal is taken on the part of Wiel.

We see no error in the judgment.

The instrument sued upon expresses upon its face that it was given for borrowed money.

On the part of the defendant, Wiel, there is an entire failure to ■establish the allegations contained in his answer.

The plaintiff prays this court to award him damages for a frivolous appeal, and we think the case warrants us in granting them.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed. It is farther ordered that the defendant, Wiel, pay the plaintiff the further sum of one hundred and fifty dollars as damages for a frivolous appeal.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.  