#### JOSEPH STURGILL vs. SAMUEL THOMPSON.

Where one who had appealed from the judgment of a justice of the peace, countermanded the appeal, and at his request, the justice retained the appeal: — Held, That the judgment was thereby reinstated in full force, and would maintain a suit founded thereon; although the appeal was countermanded, upon an agreement of the opposite party to refer the whole matter to arbitration, which agreement he had violated.

This was an action, commenced by a warrant before a justice of the peace, in which the plaintiff declared for a debt due by a former judgment, rendered the 28th February, 1851.

It appeared upon the trial before Ellis, Judge, at the Fall Term, 1852, of Ashe Superior Court of law, to which Court the case had been removed by successive appeals, that the parties were cited to trial on the original warrant, on the 4th February, 1851, at which time the justice gave judgment for the defendant. The plaintiff afterwards, to wit, on the 13th of the same month, applied to the said justice for a new trial, which he granted. There was no evidence offered, of the defendant’s having notice of the application for a new trial, but it appeared that he attended at the day, before the justice, and defended his suit, at which time the justice rendered judgment against the defendant for the plaintiff’s debt., and against the plaintiff for the costs. From this judgment the defendant prayed an appeal to the County Court, and entered into bond therefor; but before the sitting of the said Court, he applied to the justice holding the warrant and appeal, and requested him not to return the papers to Court, stating that they (the parties) had agreed to withdraw the appeal, and leave the matter to arbitrators to settle. And the defendant offered to prove that the terms of withdrawing the appeal were, that the arbitrators who had been agreed on, should take the whole matter into hand and settle it, and that in fact the judgment as well as the appeal ivas intended to be withdrawn and referred to said arbitrators. His Honor refused to admit this testimony ; and charged that the withdrawal of the appeal reinstated the judgment, and the action could be sustained. The defendant then asked the Court to instruct the jury, that as he had no notice of the proceed-, ings before the magistrate to obtain a new trial, the first judgment *393was still in force, and therefore the plaintiff could not maintain this action, which instruction his Honor refused, and there was a verdict and judgment for the plaintiff, from which the defendant appealed.

Mitchell, for the defendant.

Boyden, for the plaintiff.

Battle, J.

We have no hesitation in affirming the judgment in this case. It was certainly competent for the magistrate to grant a new trial, and after the defendant appeared at the second trial, and defended the action, it was too late, particularly after a judgment therein against him, to object that he had not any notice of the proceedings to obtain the new trial. The appeal of the defendant from the judgment given by the magistrate against him, vacated it until he withdrew the appeal; but as he had a right to withdraw it before the cause was entered upon the docket of the County Court, (here was nothing to prevent the judgment from being again in full force. The testimony offered by the defendant, in relation to the agreement between him and the plaintiff, to refer the matter to arbitration, may possibly give him a cause of action for the breach of such agreement; but it had no tendency to show that the judgment was not valid and subsisting, or that the plaintiff had no right to proceed on it. The testimony was therefore, immaterial, and was properly rejected.

Per Curiam. Judgment affirmed.