JOSEPH STURGILL vs. SAMUEL THOMPSON, 1 Busb. 392

Battle, J. We have no hesitation in affirming the judgment in this case. It was certainly competent for the magistrate to grant a new trial, and after the defendant appeared at the second trial, and defended the action, it was too late, particularly after a judgment therein against him, to object that he had not any notice of the proceedings to obtain the new trial.

The appeal of the defendant from the judgment given by the magistrate against him, vacated it until he withdrew the appeal; but as he had a right to withdraw it before the cause was entered upon the docket of the County Court, (here was nothing to prevent the judgment from being again in full force.

The testimony offered by the defendant, in relation to the agreement between him and the plaintiff, to refer the matter to arbitration, may possibly give him a cause of action for the breach of such agreement; but it had no tendency to show that the judgment was not valid and subsisting, or that the plaintiff had no right to proceed on it. The testimony was therefore, immaterial, and was properly rejected. Per Curiam. Judgment affirmed.