#### WILLIAM WALTERS *vs.*FLEETWOOD WALTERS.

Where A. gave B. a bond for fifty dollars, and, at the same time, it w as agreed by parol, that, whenever A. paid certain costs in a suit then pending between the parties, the bond should be surrendered and given up, and A. afterwards paid the costs ; *Held,*that this was competent and sufficient evidence of the discharge of the bond.

The case between the same parties, reported June Term, 1850, cited and approved.

Appeal from the Superior Court of Law of Robeson County, at the Spring Term, 1851, his Honor Judge Marly presiding.

This was an action originally commenced before a Justice of the Peace on a bond, of which a copy accompanies this case, marked A. The defendant pleaded general issue, and payment, accord, and satisfaction. The execution of the bond was proven by the subscribing witness thereto, who also proved that a suit, which had been pending between the same parties in the Superior Court of Robeson, was compromised; the terms of which were reduced to writing, signed ana sealed by the parties, a copy of which *29accompanies this case, and is marked B. The defendant proved by the subscribing witness to the bond, (who was also a subscribing witness to the paper writing, the copy of which is marked B,) that the bond declared on was given by the defendant at the same time of the written agreement, the same being insisted on by the plaintiff, and given with the express understanding, that, whenever the defendant, Fleetwood. Walters, complied with the agreement, by paying to the Clerk of the Court Eighty Dollars and balance of the costs, that the bond of Fifty Dollars, on which this suit is brought, should be given up and surrendered. This testimony was objected to by the plaintiff, but was admitted by ihe Court. The defendant then further proved by the Cleric of the.Court, that, previous to the commencement of this action, the defendant, Fleetwood Walters, had certainly paid him the Eighty Dollars, and, according to his impression, also the balance of the costs, amounting to about Twenty Dollars more. The plaintiff. objected to this evidence, but it was admitted by the Court. The counsel for the plaintiff asked the Court to charge the Jury, that, the defendant ought to have given notice to the plaintiff of his payment of the money to the Clerk, and demanded a surrender of the bond. But the Court declined giving this instruction. The plaintiff insisted, that, notwithstanding these facts, he was entitled to recover on the note, but his Honor charged the jury, that if they believed the verbal agreement between the parties to have been as stated by the witness, and that the Eighty Dollars had been paid by the defendant, and the other Twenty Dollars, which was his half of the remainder, before the bringing of the action on trial, to find for the defendant.

*{Copy of the bond marked A.)*

On or before the -24th July, 1846, I promise William Walters, or order, Fifty Dollars, value received, this 24th March, 1846. Test. FLEETWOOD WALTERS,(Seal.)

•J. Winslow.

*30
      *(Copy of the agreement marked B.)*

Fleetwood Walters *vs*William Walters. Robeson Superior Court, Spring Term.

The parties agree to dismiss this suit on the following terms : The plaintiff to pay Eighty Dollars of the costs, and if any balance is due, whatever balance there is, is to be paid, one half by the plaintiff and one half by the defendant.

Test. FLEETWOOD WALTERS, (Seal.)

WILLIAM WALTERS, (Seal.)

J. Winslow.

*Banks*and Mullins, for the plaintiff.

*Dobbin, J. G. Shepherd*and *W.*Winslow, for the defendant.

Nash, J.

This case was before the Court at June Term, 1850, and the principles of law, there discussed and decided by the Court, are decisive of the case as now presented. The case, then, did not set forth what amount of costs were to be paid by the defendant. The Court says, *“*as the amount of the costs which the defendant agreed to pay, and did pay, is not stated, and the opinion of the Court was given against the plaintiff, without any reference to the amount, it must be understood that the opinion rested exclusively upon the agreement, that the bond should be void or be delivered up, if or when the defendant should pay the costs, whether more or less, and upon the fact that he had paid them.” This is declared to be erroneous, annexing, upon parol evidence, a condition to a bond which is absolute in its face, and upon this principle the case was decided. In the case now before us, the agreement upon which the suit previously pending between the parties was compromised, is set out. By it the defendant bound himself to. pay Eighty Dollars of the costs, and if any balance is due he obliges himself to pay one half of it, and the bond upon which this. *31action is brought, was executed at the same time; and the defendant offered to prove, that it was at the time expressly-agreed, that the bond should be given up and surrendered, upon the defendant’s complying with that agreement. To this evidence the plaintiff objected, but it was received by the Court. And we concur with his Honor that the evidence was competent, not as annexing, by parol, a condition to a written instrument, but as laying a foundation to show 'its discharge. If A. owe by bond $100 to B., and B. owes C. a like sum, A. cannot discharge his obligation by showing he has paid his obligee’s bond to C. But if it be agreed between A. and B., that A. shall pay to C. the amount of his bond, and he does so, it will be a discharge under the plea of payment, and to that effect is the opinion of the Court upon the former trial of this case; It is there said, page 147: K If, indeed, the defendant paid the costs, or any part of them, we should hold the amount thus paid to be a payment pro *tanto*upon the bond sued on.” Bitt here he had not paid a less sum than that called for in the bond, but a much larger one; it is of course not a payment *pro tanto,*but one *pro toto.*

Per Curiam. Judgment affirmed.