delivered the opinion of the court.
This is a suit brought on a promissory note of seven hundred and thirty-six dollars and thirty-seven cents, bearing interest at the rate of six per cent, per annum, from its date, to wit: the 7th of April, 1838. The general issue was pleaded ; the court below gave judgment for the amount of the obligation sued on, with eight per cent, interest thereon, from the 10 th of-January, 1839. The defendant took this appeal, in which the plaintiff joined, in this cCurt, by praying that the decree be amended so as to allow the interest as stipulated in the note itself.
This case presents only a question of costs, which must be decided by article 888 of the Code of Practice. It provides that, “if the appellee has cause to complain of the judgment appealed from, he may, without appeal on his part, state in his ¡answer the points on which he thinks he has *353sustained wrong, and may pray that the judgment be reversed, with respect to them, and confirmed with costs on the 1'eSt.”
A computation of the interest, as given by the court below, and of that mentioned on the face of the instrument sued on, up to the date of the judgment appealed from, shows that at the time the appellee had cause to complain of it, although on a longer run of both rates of interest, that allowed -would be more beneficial to him than that he is entitled to by the tenor of defendant’s note.
The appellee has prayed for damages for the frivolous appeal; as he has availed himself of it to have the judgment amended, we do not think that any should be awarded to him.
It is, therefore, ordered, that the judgment of the Commercial Court be affirmed, with costs as to the amount déereed to plaintiff, but that the interest thereon shall run at the rate of six per cent, per annum, from the 7th of April, 1838, until paid, instead of that allowed by the judgment appealed from.