Potter v. Smith , 14 Johns. 444 ( 1817 )

Per Curiam.

The facts stated in the plea, show that the judgment in the court below has been voluntarily satisfied, except one half of the costs, which were agreed to be given up to the plaintiff in error, in consideration of his agreement to waive any error in the rendering of judgment. It is true that the agreement alleged to have been entered into between the parties, is not pleaded as a release ; and it is doubtful, at least, whether an accord and satisfaction can be pleaded in bar of a writ of error, notwithstanding the case of Pixlee v. Salmon.

But the court have decided, that when a certiorari is brought merely for the purpose of throwing a bill of costs on the defendant, we would neither affirm nor reverse the judgment. (Monell v. Weller, 2 Johns. Rep. 8.) In that case, the justice improperly nonsuited the plaintiff below, but no costs were awarded, and we thought that we ought not to interfere, because we could not restore the party to the state he was in when the nonsuit was granted. Such is the case here. If the judgment is reversed, the plaintiff in error cannot recover back the money he has paid; and the only object he can have in view, is to subject the defendant to the costs of the certiorari. The agreement between the parties is, no doubt, a good accord and satisfaction. We are of opinion that the defendant is entitled to judgment on the demurrer.

Judgment for the defendant,