Dyett v. Peneleton , 8 Cow. 325 ( 1826 )

[Colben,- Senator.-

But the defendant in error denies that -, this-suit was settled by.-the notes. He says the right to go on with the writ-of error, -was expressly reserved by him-.- This: would seem to destroy the effect which you attribute to the settlement. It goes" to contradict your *case. How are we to satisfy ourselves that the parties in- „ , , . . „ -mi „ . tended to dispose of this writ of error i The fact is dis-r

Dunlap. The court should at any rate give us a chance to try the fact. Here is testimony independent of the parties. A jury would of course be with us; or this court can take the same ground.

Spencer, Senator,

I am aware of no power in this court to try a question of fact by jury ; nor that they can send down the question to another court. But no agreement as to this writ of error is sworn to. The defendant in error seeks to make one out merely by way of inference. The plaintiff in error sets up a fact not at all inconsistent with the facts on the other side, which shows that there was no agreement in the case. The mere giving of the notes in payment or security of the judgment below, can form no objection to the writ of error. I think the motion should be denied.

Jones, Chancellor.

This case is perfectly clear. It must rest on one of two grounds, either that an accord and satisfaction is made out, or that there was an agreement not to pursue the writ of error. Neither is sworn to directly on the part of the application, while both are denied by the plaintiff in error. If he had paid the money on the judgment voluntarily, that would have been no ground for this motion. If the judgment be reversed, it will be a good defence against the notes, provided they remain in the hands of the defendant in error. If they shall be assigned, a writ of restitution may issue. In any point of view, the motion must be denied.

Golden, Senator.

This case is certainly not so strong for the motion, as if the money had been paid, or collected on execution; and I never heard that either would be a reason against a writ of error. It might still proceed, and on reversal, writ of restitution would go. The plain tiff in error denies that the notes were intended as a set tlement of the writ of error. It is alleged that the iudgment was to stand as security for the notes. Be it so. If judgment is affirmed, it will be collected; if reversed, it would be unreasonable to hold the plaintiff in error to the payment. The agreement must be taken that the judgment should stand upon its own strength. I have no doubt of the power of this court to set aside a writ of error j where it is in violation of an agreeement or of good faith. But this is not such a case.^(a)

Per tolam curiam

Motion denied.

(a) Where a defendant obtained time to plead, on the terms of giving judg ment of a certain term, and afterwards brought a writ of error, the court quash the writ. Cave v. Masey, 3 B. & C. 735