
    MAHLE vs. TERRY.
    APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF NATCHITOCHES, JUDGE KING OF THE FIFTH DISTRICT PRESIDING.
    Appeal frivolous and for delay, and judgment affirmed with the maximum of damages.
    The plaintiff sues for the price of a slave, which he sold to the defendant for the sum of one thousand five hundred and ten dollars, by public act, dated the 15th September, 1838, in which the defendant bound himself to take up a note of the petitioner to one Daniel Murphy of New-Orleans, of the same amount, and which he had given for the purchase of this same slave, on the 28th February, 1837.
    The plaintiff annexes both notes and acts of sale to the petition, and alleges that the defendant refuses to pay him the said sum, although amicably demanded. He prays judgement for the amount of his demand, and that the slave, Isaac, be seized and sold to satisfy the same.
    The defendant pleaded a general denial, and averred that the plaintiff was indebted to him, in the sum of one thousand six hundred dollars, by promissory note, which he pleads in compensation ; and prays that it be recognized, and that he havejudgment over against the plaintiff for this or such other sum as may be found due ; and for a trial by jury.
    
      Upon these pleadings and issues the parties went to trial. The judge overruled (he prayer for a jury, on the ground that the suit was on an obligation which had ceased to be conditional, and there was no affidavit annexed. The defendant’s counsel took his bill of exceptions.
    The act of sale of the slave from plaintiff to defendant, has the following clause:
    “The above sale is made for and in consideration of the sum of one thousand five hundred and len dollars, foi which the purchaser hereby binds himself, his heirs, &c., to take up and pay a certain promissory note for the like sum, signed by the said Mahle, payable six months after date, to the order of Thomas H. Airy & Co., endorsed by them and Michael Colgan & Company, which note bears date the 27th day of February, 1837, and is negotiable at, the City Bank, &c., and was given for the consideration of the sale of said slave, from Daniel Murphy to the present vendor.”
    There was judgment for the plaintiff, for the amount of his demand ; also, allowing the defendant credit fór thirty-three dollars, with interest, in compensation of the costs of suit.
    Boyce, for the plaintiff,
    insisted on the affirmance of the judgment as a delay case, and with damages.
    
      Rothrock, for the appellant,
    submitted the case on written points, urging, in substance, that the suit is upon .a contract which coniained a condition which had ,not happened, and that until then, the plaintiff had no cause of action, and that the judgment should be reversed.
   Marlin, J.,

delivered the opinion of the court.

The plaintiff claims the price of a slave. The defendant •pleaded the general issue and .compensation. There was judgment against him for the price claimed, and compensation allowed in the sum of thirty-three'dollars, with interest, and he appealed.

Appeal frivolous and for delay, and judgment affirmed with the maximum of damages.

The notarial act of sale shows, that the defendant gave his note for the price of a slave, and engaged to take up a note,of the same amount, given by his vendor to one Daniel Murphy, from whom he purchased the said slave ; and stipulated, that he should not be liable for any damages, interest or costs, resulting from the non-payment of the note at maturity.

There is neither allegation or proof that he took up the note; and the plaintiff has shown that he did not, by annexing it to the petition. The judgment was for the whole amount of the price claimed, and the only credit claimed was allowed, with legal interest from the inception of the suit. The defendant has, therefore, no right to complain : on the contrary, this appeal is evidently taken for delay, and is frivolous.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs and ten per cent, damages.  