#### FRANCIS MATHIS v. ANDREW BRYSON.

Whore a judgment rendered before a justice of the peace is appealed from, and the parties, by consent, withdraw the appeal, the judgment is restored. The payment of a lesser sum than the amount claimed, where the amount in question is unascertained, will support the plea of accord and satisfaction, if received in discharge of such claim.

This was an action of debt on a former judgment, tried before Ellis, Judge, at tbe Eall Term, 1856, of Jackson Superior Court, and brought to this Court by direct appeal from tbe judgment of a magistrate.

Tbe plaintiff offered, in evidence, tbe former judgment sued on, from which the defendant bad appealed, and upon which was an endorsement of such appeal, and subsequently a withdrawal of the appeal by the appellant. One "Wilson, the justice, who tried the case, testified that after the appeal was taken, and as he was carrying the papers to court, the parties came to him, when the appellant (the defendant) told him not to return the appeal to court, but to hand it back to the officer, which he did. He understood from them that they intended to settle the matter without its going into court.

One Ilend&rson, for the defendant, swore the parties agreed to withdraw the appeal and refer the case to arbitrators; that tlie parties met to have tbe matter submitted to referees, but that the persons selected did not meet. That the defendant borrowed a dollar from Mm, which he handed to the plaintiff, who, on receiving it, seemed satisfied. He understood from the parties that they had settled the matter, and all seemed satisfied.

A credit of one dollar was endorsed on the judgment, and was admitted on the trial below.

Upon these facts, the plaintiff insisted on his right to recover the amount of the judgment, deducting the sum of one' dollar.

The defendant contended that the judgment had been vacated by the acts of the parties, and that there was an accord and satisfaction proved in the case.

*509Tbe court charged tbe jury that tbe withdrawal of tbe appeal, restored tbe judgment. lie charged also, that there was evidence of a payment of one dollar on tbe judgment, but that there was no evidence of an accord and satisfaction of the judgment, and that tbe plaintiff was entitled to recover for tbe balance, after deducting one dollar.

Yerdict for tbe plaintiff, and judgment accordingly. Defendant appealed.

J. W. Wooclfin, for tbe plaintiff.

Baxter, for tbe defendant.

Nash, C. J.

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.

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.

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 *510satisfied, 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.

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