Varion v. Debergue

Morphy, J: delivered die opinion of the court. This is d suit brought by the endorsee of a note of hand drawn by defendant on the 29th of Julie, 1837, and made payable two years after its date, with interest at the rate of four per cent, per annum. There was judgment below for plaintiff and defendant appealed. On examining the record, we find that the judge below allowed five percent, per annum on the debt instead of four, which is stipulated in the note sued on, and prayed for in the petition; moreover it exhibits no proof of amicable demand, although the want of it is specially pleaded. It is, therefore, ordered that the judgment of the Commercial Court he so amended as to decree defendant to pay only four per cent, per annum, instead of five, on the amount of the note, and the costs made below after the first appearance of defendant, inclusively; the remaining costs in that court and those of this appeal to be paid by the plaintiff and appellee.