delivered the opinion of the *430court. This case is brought up by the appellee, who insists, that the judgment of the court below should be affirmed with damages.

The record does not contain the petition of appeal; and it has been argued by the counsel who have appeared on behalf of the defendant, that all we can do is to dismiss the parties from this court.

The appellee contends, that a certificate of the clerk, that there was a petition which was taken out by the appellant, is sufficient evidence to establish the fact, on which an affirmance of the judgment below is demanded.

We do not think so; but we are of opinion, that as the transcript filed contains an appeal bond, the defendant, by signing that instrument, has furnished sufficient proof that he appealed.

As to the errors which have been assigned, it is sufficient to remark, that they do not appear on the face of the record; and if they did, we should be obliged to dismiss the appeal—we could not affirm the judgment with damages.

It is ordered, adjudged and decreed, that the judgment of the district court be affirmed *431with costs, and 10 per centum damages on the amount of said judgment.