dissents as follows: Judgment affirmed without argument. On motion of defendants’ counsel, the court refuses to assess ten per cent, damages. Prom this judgment I dissent; because, it is manifest that the cause was brought to this court for delay; the plaintiff in error having only availed himself of the forms of law to bring this cause into this court, and thereby retain the amount of the judgment in his own hands, instead of paying the same to the defendants, according to the determination of the said judgment.
The plaintiff, having chosen to retain the money, as he might do under the law, it is the duty of the court to give the defendants that compensation which the statute has intended they should receive in such cases.
*237Nor do I think the court is at liberty to consider the merits of the judgment, or the hardship, real or fancied, which it may impose on the plaintiff. Such questions are, of course, merged in the judgment itself.