delivered the opinion of the court.

On a. former day of this term the decree of the court below was reversed, and a modified decree was directed to be entered here, 84 So. 185, which was accordingly done, but there was included therein as damages five per cent, of the amount of the decree rendered in the court below.

The appellant’s motion to correct this decree by striking the five per cent, damages therefrom must be sustained, for the reason that such damages can be allowed only in accordance with section 4926, Code of 1906 (Hemingway’s Code, section 3202), which provides therefor only in case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect.

Motion sustained.