#### Potter *against*Smith.

NEW-YORK,

October, 1817.

A justice’s court verseci, where it appears that the bfoughtrimerl?y o°tbrow?ngc<»ta iñem>refendant asslgnment^ferran?, the deféndi occon^subse-30 rendition0 of6 satistoction^'or cmts?toSwMch plea the plaintiff in error demur-that the defendant in error was entitled to judgtherre‘judgment re»°ereed?uldhee verback°whratChé faaction?dland,ls' m1yer°objecthls subject thé deto the costs the *certiorari.*whether acporo and satispleaded *77 bat*?ora Qajr0f er"

THE defendant in error recovered a judgment in a justice’s-court, against the plaintiff in error; and the plaintiff having . , * _ , drought a certiorari, and assigned errors, the defendant pleaded t0 the assignment of errors, two pleas: 1. That after judgment was rendered in the court below, it was agreed between the parties, that the defendant should, and he did, release and discharge from execution certain goods and chattels of the plaintiff, which hád been taken under several executions issued out of a justice’s court, in pursuance of the above-mentioned judgment, and two others against the plaintiff, in favour of the defendant in error, and acquit and discharge him of one half of the costs . . , . , , . , , accrued on the said judgments and executions; and, also, purchase of the plaintiff a certain pair of horses for the. sum of 1 * j[5Q dollars ; and that in consideration thereof, and that the damages for which the said judgments were rendered, were justly due, it was further agreed between the parties, that so much of the said sum of 150 dollars as would be sufficient to satisfy the damages and one half of all the costs, should be applied in payment of the executions; and in consideration as aforesaid, it was further agreed between the parties, that the plaintiff should, and he then and there did, acquit and discharge *1 /*1 ° the defendant in error from all errors in the said proceedings, 1 o *'*or m rendering the said judgment.

2. That the plaintiff, in consideration that the defendant in error had acquitted and discharged him from one half the costs on the said three judgments and executions, acquitted and discharged to the defendant all errors in the said proceedings, or in rendering the said judgment. .

To these pleas there was a general demurrer, and joinder in demurrer.

*H. R.*Storrs, in support of the demurrer,

contended, that the plea was bad, 1. Because it did not set forth a sufficient *release*of the errors ;* and, 2. Because an accord and satisfaction is no bar of a writ of error.

*449
      *Talcot,*contra,

insisted, that the plea was good, as a plea of accord and satisfaction. In *Pixlee*v. Salmon,* the supreme court of errors in *Connecticut,*decided that accord and satisfaction might be pleaded in bar to a writ of error. The object of the *certiorari*is merely to obtain costs, for if the judgment is reversed, the plaintiff in error cannot recover back the money he has paid with full knowledge of the law and the fact. An action merely for costs, ought not to be sustained. In *Monell*v. *Weller.*
      *†*
      **the court said that they would not reverse or affirm a judgment, because the justice had omitted to award costs, on St nonsuit. *

*Storrs,*in reply,

said, that the court were bound to give judgment on the demurrer, according to law, though the law maybe only to give the party costs."

*Van Santwood*v. Sanford, 12 Johns. Rep. 197.

,, a 2-12.

*2 Johns. Rep. 8 Lovel v Evertson, 11 Johns. Rep.*52.

*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,