
    William R. Sapp v. Joseph Laughead and others.
    A notice of appeal given at the time of the rendition of a judgment, on the 12th day of March, 1852, in the common pleas, and in due form entered on the records of the court, and standing there as such notice in the case on the 23d of the same month, when the law regulating appeals from the common pleas to the district court was enacted, operated as a sufficient compliance with the law as to notice of the. intention of the party to appeal.
    "Where, in an action of assumpsit, there is an issue by the plea of non-assumpsit, 
      and also on a special plea of accord and satisfaction, a verdict of a jury-finding for tlie plaintiff on tlie first issue, is sufficient, inasmuch as the the general issue covers the ground of defense set up by the special plea.
    Petition in error, to reverse the judgment of the district court of Holmes county.
    *The original proceeding was an action of assumpsit, instituted in the common picas, by the defendants in error, against the-plaintiff in error. The declaration contained a special count on a promissory note, and the common counts; to which the plaintiff in error plead non-assumpsit, and also two special pleas, setting up, in different forms, accord and satisfaction.
    In the court of common pleas the case was submitted to the court, and judgment rendered in favor of the plaintiff in error. An appeal was taken to the district court, where the cause was submitted to a jury, and verdict for defendants in error, for the amount of the promissory note, with interest.
    After verdict the plaintiff in error moved to dismiss the appeal, which motion was overruled, and judgment rendered on the verdict.
    It is now assigned for error:
    1. That the court erred in overruling the motion to dismiss the appeal.
    2. That the jury did not pass upon all the issues made by the pleadings in the case.
    
      W. H. Smith, for plaintiff in error.
    
      M. Soagland, for defendants in error.
   Bartley, C. J.

The ground of the motion to dismiss the appeal was that, after the judgment in the common pleas, on the 12th of March, 1852, the defendants gave notice of appeal, which was at that time entered on the records of the court; whereas the law regulating appeals from the common pleas to the district court, and providing for the notice of appeal, was not enacted until the 23d day of the same month. This notice of the intention of the party to appeal, although entered on the journal of the court prior 176] *to the passage of the law, remained tb,ere, after the law had taken effect, as a standing notice in the case. The opposite party was bound to presume that the appellants would avail themselves of any law which might exist within the time allowed for perfecting the appeal for carrying out tbeir intention. With this notice in the case standing on the journal, it would have been idle to have required another notice to be given after the passage of the law. The notice of appeal given, therefore, and still standing in the case, operating as a sufficient notice to the opposite party of such intention to appeal, it becomes unnecessary for us to go further and inquire whether the motion to dismiss the appeal for mere informality in perfecting it, came too late after verdict.

As to the other assignment of error, it is sufficient to say, that the verdict fully responds to the issue made by the plea of non-assumpsit ; and this covered the whole ground of the defense set up in the special pleas. As accord and satisfaction could have been given in evidence under the general issue, the special pleas were superfluous; and it did not become essential that the jury should pass upon them in form.

Judgment of the district court affirmed,-and cause remanded.

Swan, .Brinkerhoee, Bowen, and Soora?, JJ., concurred.  