delivered the opinion of the court.

This suit was brought by the holder of a negotiable note, against the maker and endorser, and claimed judgment in solido, &c. The maker of the note pleaded a respite obtained from his creditors, in abatement of the plaintiff’s action. This plea was sustained by the court below, and judgment-rendered against the endorser alone, from which he appealed.

The cause was argued ex parte by the plaintiff’s counsel *122before this court, solely in relation to the correctness of the judgment, as rendered against the appellant, consequently the steps taken by the District Court, touching the interest of the maker of the note, are not now to be investigated.

Imthe points filed, ten per cent, as damages are claimed by the appellee, on the ground that the appeal is frivolous, and was taken for delay alone. It appears, from the evidence of the case, that all measures required by commercial law, to charge the endorser, were pursued by the holder of 4the note, and he having thus been absolutely indebted to the latter, both jointly and severally, with the maker, the respite pleaded as above stated, could not legally alter his situation as an unconditional debtor to the plaintiff.

It the indulgence granted to the maker of the note, could a ? ^ave any influence on the situation of the appellant, it might properly be offered as an additional reason reason why he should be compelled to make immediate payment, the creditors having lost his rcourse, at least for a time, according to the opinion of the District Court, against one of his debtors in solido.

We are of opinion, that ten per cent, damages should be allowed.

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