49 N.C. 508 | N.C. | 1857
There is error. The action is brought on a former judgment. The magistrate, who gave the judgment, proved that, after it was rendered, the defendant appealed to the Superior Court, and while he was on his way to return the papers to court he was met by the parties, when the appellant told him not to return them to court. He understood from the parties, that they intended to settle the matter without going to court. Another witness testified that the parties agreed to withdraw the appeal and submit the matter to referees; that the referees did not meet, and the defendant borrowed a dollar from him; that plaintiff took it and seemed satisfied.
The jury were properly instructed that the withdrawal of the appeal, before the cause was returned by the magistrate to the 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.
But we do not agree with his 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. The parties were 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 had 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.
PER CURIAM. Judgment reversed, and a venire de novo awarded.