#### Toomer vs. Long.

|^<ASE. The defendant pleaded the act of limitations ; and there was at the last term a verdict for him and a motion for a new trial, being as the plaintiff’s counsel alledged, a verdict against evidence.

Judge Williams

reported the evidence to have been, that Toomer’s attorney applied to the defendant for satisfaction for some certificates he had received of the plaintiff soon after the war ; who answered, “ I have credited him in my account with the value of the certificates, if he will meet me atNewbern I will nettle with him;” and he further reported that Judge M’Cay and himself took time at the last term to consider of the motion for a new trial, and after the term, had both agreed that a new trial should be granted ; and he was now of opinion the verdict should be set aside and a new trial granted.

Haywood, Justice.

“I will settle with him,” imports a promise to pay that balance, if any; for what purpose would he settle and ascertain the balance, unless for the purpose of paying it, should it be found against him ?

A new trial granted on payment of all costs.