de]ivered the opinion of the court. T he plaintiff as tutrix of her children, sued for the payment of a sum of money due them by the defendant. She obtained judgement aud he appealed.
The statement of facts, shew that, at the trial, the defendant admitted the claim, but contended that he was not bound to pay it, till the plaintiff gave surety,. which was ordered by the judgement.
The defendant and appellant urges, that as the Court, by its judgement, recognised his right to withhold payment, till surety was giv*69en he ought not to have been directed to pay costs.
East'n District. Jan. 1824 Cuvillier for the plaintiff, Derbigny for the defendant.This might be correct, if the answer had admitted the plaintiff's claim, and refused it only on the ground, that surety ought previously to be given. But the answer denies many of the material facts in the petition, and the admission of them at the trial by the defendant, cannot save him of a suit, in which the claim was contested on the merits. We do not, however, think that damages ought to be given for the appeal.
It is therefore ordered, adjudged, and decreed, that the judgment of the parish court be affirmed, with costs.