
    Hiram Wallingford v. Sanford Dayle et al.
    Appeal from Quarterly Court — Dismissal of Case.
    An appeal to the Circuit Court operates as a merger of the judgment and is an original suit in that court as long as prosecuted; yet its voluntary discontinuance by plaintiff left the judgment in as full force as it was before the appeal suspended its validity.
    APPEAL FROM FLEMING CIRCUIT COURT.
    September 19, 1866.
   Opinion of the Court by

Judge Robertson :

While we gravely apprehend that S. Dayle never paid for the com he bought from A. Sandford and that the alleged payment to Elston as Sandford’s ostensible agent was a collusive fabrication, we cannot see how the appellant can avoid the bar to his reoovery of it as creditor of Sandford, which Dayle pleads in the judgment of the quarterly court to the effect that Elston’s receipt was genuine proof of a valid payment.

Although the appeal to the Circuit Court operated as a merger of that judgment and is an original suit in that court as long as prosecuted, yet its voluntary discontinuance by the plaintiff left the judgment in as full force as it was before the appeal suspended its vitality.

Wherefore, the judgment dismissing Wallingford’s petition to subject that debt must be affirmed.  