
    Wylie L. Harris vs. Samuel McNinch.
    Assumpsit by W. H. against S. M. for five hundred and ninety-one dollars, for hire of wagon, team and .driver. Before suit commenced, a creditor of W. H. had issued an attachment against him in North Carolina, and S. M., being made garnishee, was condemned to pay two hundred and forty-seven dollars and ninety-nine cents. W. H. had also drawn an order on S. M. for one hundred and seventy-two dollars, which S. M., after suit commenced, accepted in writing.
    
      Held, that the order and attachment were no bar to this action.
    
      Held, further, that the amount adjudged against 8. M., in the attachment case, should be allowed as a discount.
    BEFORE WITHERS, J., AT YORK, FALL TERM, 1856.
    Tbe report of Ms Hpnor, tbe presiding Judge, is as follows:
    “ The plaintiff brought assumpsit, on tbe 29th December, 1854, for tbe hire of wagon, team and driver, employed on tbe streets of Charlotte, from tbe 18th March to tbe 16th December, 1854. He claimed ten hundred and sixty-three dollars, reduced by credits allowed to five hundred and ninety-one dollars.
    " The defendant assumed various grounds of defence, which involved much testimony. Many questions raised for decision and a tedious trial. But the grounds of appeal will be answered by a short statement.
    “Before the plaintiff’s writ was lodged, (which was 29th December, 1854,) one Young issued against him, in North Carolina, an attachment, claiming three hundred and seventy-five dollars and interest — attachment issued 15th November, 1854 — served on defendant, as garnishee, 16th November, 1854. At April Term, 1855, of the Court in Charlotte, return having been made by defendant that he owed the plaintiff two hundred and forty-seven dollars and ninety-nine cents, to be paid at three subsequent periods, that sum to be paid at such periods, was condemned in defendant’s hands by a judgment entered against Mm on Young’s case.
    “The plaintiff likewise, before he brought his writ, to wit, on the 11th November, 1854, gave to Lowry and Avery an order on the defendant for one hundred and seventy-two dollars, which the defendant refused to accept at first, and did not accept until after this action was commenced, (for so the jury found upon that point) and when he did accept, antedated the acceptance, which was in these words: ‘I accept the within order, provided there be in my hands a sufficiency to pay it.’
    “This order and the attachment, the defendant insisted, were a bar to this action. I overruled the position.
    
      “ The plaintiff insisted that the sum adjudged against the defendant in the attachment case, to wit, two hundred and forty-seven dollars and ninety-nine cents, should not be allowed as a discount. I overruled also this position, and it was allowed. ■
    “ The jury found for the plaintiff a verdict for one hundred and seventy dollars and forty-six cents, and interest from the 18th December, 1854.”
    The defendant appealed on the grounds:
    1. Because his Honor erred in instructing the jury that the order drawn by plaintiff on defendant in favor of Lowry and Avery for one hundred and seventy-two dollars, dated November 11,1854, (before the commencement of this action) did not bar the plaintiff’s recovery to that extent, unless the order was accepted by defendant before the action commenced.
    2. Because his Honor erred in instructing the jury that the attachment issned in North Carolina at the suit of B. H. Young vs. Wylie L. Harris, for three hundred and seventy-five dollars and interest, and served upon tbe defendant as garnishee, November 16,1854, (before the commencement of this action) did not bar the plaintiff’s recovery to that extent.
    3. Because, it is respectfully submitted, the order for one hundred and seventy-two dollars and the attachment for three hundred and seventy-five dollars and interest, amounting in the aggregate to five hundred and forty-seven dollars exclusive of interest, exceeded the amount of plaintiff’s claim, and constituted a complete bar thereto; and his Honor should have so instructed the jury.
    The plaintiff also appealed on the ground:
    Because his Honor erred in charging the jury that the sum of two hundred and forty-seven dollars and ninety-nine cents, condemned in defendant’s hands, under the proceedings in 'attachment in North Carolina, although never paid, should be allowed as discount to plaintiff’s demand.
    Smith, for plaintiff.
    Melton, for defendant.
   Pee CuriAM.

In this case we concur in the ruling of the Judge below, and find nothing in the verdict of the jury which appears to us to be erroneous.

The motion is dismissed.

O’Neall, Wardlaw, Withers, Whitner, Glover, and MuNRO, JJ., concurring.

Motion dismissed.  