delivered the opinion of the court. This is an action, founded on two notes of hand, executed by the defendant to plaintiff, in consideration of the price of certain slaves, which were sold by the latter to the former; for which, the vendor reserved a mortgage, to secure payment. It is alleged, that the vendee had sold and transferred them to a third person, before the institution of this suit, and the plaintiff prays, that they may be seized, in the hands of this third person, to satisfy his claim.
The court below gave judgment against Ware alone, (reserving to the petitioner a right to pursue the mortgaged property, in the hands of the third possessor, according to law,) and from this judgment the defendant appealed.
We are unable to discover any grounds whatever, to support his appeal. It appears to us, that the appeal is entirely frivolous. It is true, that the counsel for the defendant mov*341ed the court to set aside a judgment, which had been rendered, as being contrary to law and evidence, and to give one which should accord with the facts and the law of the case. The record does not show the judgment complained of; that which appears on it, does, in our opinion, accord fully with the law and evidence of the case, and there is nothing recorded, which alludes to any amendment, except the motion, as above stated. The judgment ought to be affirmed, with damages.
Johnston for the plaintiff, Winn for the defendant.It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with ten per cent. damages thereon, and costs in both courts.