
    M'COY’s EXECUTORS VS. PRITCHARD ET AL.
    APPEAL FROM TIIE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING.
    According to the 907th article of the Code of Practice, the Supreme Court is empowered to condemn the appellant to pay damages for a frivolous appeal, if the appellee claims it; but these damages cannot exceed ten por cent, on the amount in dispute, including interest.
    So, where the judgment bears five per cent, interest, the damages cannot exceed five per cent.
    
      This is an action on a promissory note against the maker and endorsers, and judgment in solido against all of the defendants is prayed for.
    The defence, after pleading some exceptions, which were r 7 overruled, was a general denial.
    The plaintiffs proved their demand, and had judgment, with five per cent, interest thereon, and the defendants appealed.
    
      Grymes, for the plaintiff.
    
      G. B. Duncan, for the appellants.
   Rost, J.,

delivered the opinion of the court.

This, is an action upon a promissory note, duly protested for non-payment. Judgment was given for the plaintiff in the court below, and the defendant has appealed. The defence was not serious, and the appeal was evidently taken for delay. The plaintiff has prayed for damages, and is entitled to them: by article 907 of the Code of Practice, this court is empowered to condemn the appellant on a frivolous appeal, to pay to the appellee, if the latter claims it by his answer, such damages as it may think equivalent to the loss which he has sustained, by the delay consequent on the appeal, provided the amount of such damages shall not exceed ten per cent, on the value of the amount in dispute. We are of opinion, that, under this provision, the plaintiff can receive no more than ten per cent, upon the sum due him. ' That rate of interest being the highest which our law sanctions for the use of money, the damage caused by the loss of that use cannot exceed it; and, as the note sued on bears interest at the rate of five per cent, from the day of the protest till paid, we can only allow five per cent, more upon its amount.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with five per cent, damages on the amount of the note, and costs in both courts.  