Mathis v. . Bryson

¶1 There is error. Tbe action is brought on a former judgment. Tbe magistrate, wh© gave tbe judgment, proved that, after it was rendered, tbe defendant appealed to the Superior Court, and while be was on bis way to return tbe papers ’to court he was met by the parties, when the appellant told him not t© return them to court. He understood from tbe parties, that they intended to settle tbe matter without going to court. Another witness testified that the pai'ties agreed to withdraw tbe appeal and submit tbe matter to referees ; that the referees did not meet, and the defendant borrowed a dollar from him ; that plaintiff took it and seemed satisfied.

¶2 The jury were properly instructed that the withdrawal of the appeal, before tbe cause was returned by tbe magistrate to tbe Superior Court, restored the judgment to its original force. Parties can, before an appeal from a magistrate reaches the appellate court, stop the appeal, and in doing so the judgment stands, as if no appeal had been taken.

¶3 But we do not agree with bis- Honor, that there was not proper evidence of an accord and satisfaction. We think there was, and that the jury ought to have been so instructed. Tbe parties wore engaged in a law-suit, which might prove a troublesome, and expensive one, and while pondering on it, the defendant borrowed from the witness a dollar, which he handed to the plaintiff, who took it, and they both seemed *510 satisfied, and said they bad settled it. What was the intention of the parties in this transfer of the dollar, was a matter of enquiry for the jury. The payment of a less sum than that claimed, will support the plea of accord and satisfaction where the amount is unascertained and in dispute, if it is received in discharge of the amount claimed. Pinnell's case, 5 Co. Rep. 117 ; Smith v. Brown, 3 Hawks’ Rep. 580 ; Stark, on Ev. 2 v. pt. 1 in Note ; State Bank v. Littlejohn, 1 Dev. and Bat. 565.

¶4 Piok. CuRiAM, Judgment reversed, and a venire do novo awarded.