
    SAYRE against SAYRE.
    OS CERTIORARI.
    Sait may be discontinued in defendant’s absence. A note is not evidence of a settlement of accounts.
    
    
      8. 8eudder,
    moved to reverse this judgment—
    1st. That Daniel Sayre, who was the plaintiff below, had commenced a suit against the defendant before the same justice, for the same cause of action, and an adjournment had taken place; and before the time of meeting on the adjournment had come, he had, in the absence of the defendant, discontinued his suit, and then commenced a new one., This, Mr. Soudder contended, could not be done, but while both parties were in court.
    
      
       S. P. Coze, 85.
      
    
   By the Court.

This is a common practice; and we can perceive no legal objection to it.

2d. That the justice permitted the plaintiff below to prove items of a book account, of an older date than a note of hand which the defendant had given him, without proving that these items were not included in the note. He contended, that giving a note [*] was itself prima fade evidence of a settlement of all previous accounts.

By the Court.

We do not think that any such legal consequence follows. It is all matter of evidence to a jury.

Judgment affirmed.  