Plaintiff’s counsel insisted that the judgment before the justice was not extinguished by the appeal. The appeal might be discontinued by the appellant, or it might be dismissed, by the common pleas, and then the judgment before the justice would be in full force. (6 Hill, 612.) The cause of action was not destroyed but suspended.
The defendant had not so pleaded as to avail himself of the appéal. He should have pleaded in abatement. His papers showed he had only pleaded in bar. (2 Johns. Cases, 312.) Hence the plaintiff might stipulate.
Jewett, Justice.
Granted the motion, unless plaintiff stipulated and paid the costs of the motion.