delivered the opinion of the court.

The plaintiffs allege, that defendants, C. A. Bullard as principal, and Ephraitn Terry as surely, undertook and obligated themselves, for a valuable consideration, to take up and pay a note drawn by them (the plaintiffs) to the order of ‘JpbH ILMahle, maturing the 23d of December, 1838. That ■ ’ itt^idaijoh of their engagement, they suffered said note to be fprotester! at its maturity, for want of payment, and refuse now’ifo' pay its amount, for which they as drawers have __ become liable unto the holder, A. L. Deblieux. The defend-v aht’s pleaded the general issue, and denied their liability. There was judgment for the plaintiffs, and E. Terry aloue appealed.

The appellant has contended that plaintiffs have no right of action against him, because they had not at the inception of this suit paid the note held by Deblieux ; that he has not been legally put in default, and that there was no time fixed in' his obligation to pay the note drawn by plaintiffs. This can hardly be considered as a serious defence. It is clear *271that the plaintiffs right of action accrued so soon as the note was protested for non-payment; and the record shows that its amount was demanded of the appellant, who admitted his liability. We have frequently held, that a show of defence in this court will not protect the appellant from damages for a frivolous appeal.

It is, therefore, ordered, that the judgment of the District Court be affirmed, with costs and ten per cent, damages.