#### Colby et al. v. Small.

(April Term, 1867.)

Damages — on dismissing an appeal. Damages are allowable, under the fifty-seventh section of the “ practice ” act, upon dismissing an appeal for want of prosecution, taken by the defendants from a decree of foreclosure of a mortgage, which found the amount due, and directed a sale of the premises, although there was no decree in personam against the defendants for the payment of the money.

Appeal from the Superior Court of Chicago.

Thomas Small exhibited his bill in chancery in the court below to foreclose a mortgage executed by Colby and Ellsthorpe to Wright, who assigned the debt to secure which the mortgage was given, to Small, the complainant. The decree found the sum remaining unpaid to be $8,580, and directed the master to make sale of the mortgaged premises, or so much thereof as should be necessary to pay that sum, together with the costs of the proceeding. No decree in personam was rendered against the mortgagors for the payment of the money, nor* was any time given in the decree for its payment, before a sale should be made of the premises.

From this decree the defendants below, Colby and Ellsthorpe, prayed an appeal, which was allowed, and an appeal bond was duly filed. But the appellants failed to lodge in the office' of the clerk of this court an authenticated copy of the record of the decree appealed from, within the time required by the forty-eighth section of the “ practice ” act.

Mr. Charles F. Peck,

for the appellee, filed an authenticated copy of the decree, the order allowing the appeal and the appeal bond, and thereupon moved the court to dismiss the appeal; and inquired of the court whether he was entitled to a judgment for damages, upon the dismissal of the appeal, there being no decree in personam against the defendants below.

*43Per Curiam :

We regard the decree as coming within the meaning of the fifty-seventh section of the chapter entitled “ practice.” Revised Statutes, 1845. The appeal will be dismissed, and a judgment entered against the appellants for five per cent, upon the amount found due by the decree, for damages, in consequence of the delay occasioned by such appeal.

Appeal dismissed.