.delivered the opinion of the court. The plaintiffs in this case had a verdict and judgment; the defendants cessful attempt to obtain a new trial, on the common ground of the verdict being contrary to law and evidence, and appealed.

There are no bills of exceptions taken by the appellants,

The suit is brought on a note of hand, the execution of which is admitted; but the defendants urged a failure of the consideration.— The jury have found a verdict for the plaintiffs, which it does not appear to us any thing authorises us to disregard. The district judge overruled the motion for a re-hearing.

The jury gave interest at six per cent., a**d the plaintiffs, satisfied that legal interest only was recoverable, remitted one per cent. The defendant objected to this and insisted on his right to a new' trial, the verdict being thus far illegal. We think the district judge acted correctly in allowing the plaintiffs to enter the release and giving afterwards judgment on the verdict for the balance.

It is therefore ordered, adjudged and de-J © that the judgment of the district court affjnnecj with costs, and that the appellees recover damages from the appellants at the rate of ten per cent, for the frivolous appeal