#### WILLIAM WALTERS vs. FLEETWOOD WALTERS.

in an action on a bond, where evidence was given that the bond was to be delivered up, when the obligor paid the costs of a certain suit; Held, that this evidence was inadmissible to show that tho bond was a conditional one, but that it was proper to show that, by the agreement of the parties, the bond was to be paid in whole or in part by the payment of the costs of the suit, and, therefore, the obligor, if he paid the costs, was entitled to a credit on the bond, pro tanto.

Appeal from the Superior Court of Law of Robeson County, at the Fall Term 1849, his Honor, Judge Dick, presiding.

The defendant gave to the plaintiff his bond for fifty dollars, dated March 24th, 1846, and payable on or before July 24th, 1846, and this suit was brought thereon by way of warrant. Pleas, non est factum, payment, and accord and satisfaction. On the trial the defendant offered evidence, that, prior to the execution of the bond, a suit was pending between the parties, which they agreed to compromise, and, as a part of the compromise, that the defendant undertook and promised the plaintiff to pay certain costs incurred in that suit, and that the bond was given as a security for those costs and upon an express agreement, at the time of the execution of the bond, that, upon the payment of the costs by the defendant, the plaintiff should deliver up the bond to the defendant. The plaintiff objected to the evidence, but the Court admitted it; and the defendant then gave further evidence, that before this said suit was brought, (which was on the 15th of October, 1847,) the defendant paid the said costs to the *146Clerk of the Court, m which the suit had pended. There* upon the Court gave an opinion, that, supposing the evidence to be true, the plaintiff could not recover; and the plaintiff submitted to a non-suit and appealed.

Mullins, for the plaintiff.

Dobbin and Winslovj, for the defendant.

Huffin, C. J.

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 iess, and upon the fact, that he had paid them. That is clearly erroneous; for, it is, plainly, nothing less than annexing, upon parol evidence, a condition to a bond, which is absolute upon its face. If the agreement had been, that the plaintiff would accept a deed from the defendant for a tract of land, or any other collateral matter, in satisfaction of the money for which the bond was given, and the thing had been done and accepted accordingly, it is true the defendant would have been discharged, as there would then be an actual subsequent satisfaction, and it would be immaterial when the plaintiff first agreed that he Would accept such satisfaction. But in the present case the alleged agreement is, that the ■plaintiff would accept a less sum of money, whenever paid, in discharge of a bond for a larger sum: which is a thing that cannot be, unless the larger sum be regarded in the light of a penalty, to be saved on the condition of paying the smaller; and it is against fundamental principle to admit parol evidence to establish such a condition, in opposition to the tenor of the bond. If, indeed, the defendant paid tfoe costs in question or any part of *147them, we should hold the amount thus paid to be a payment, pro tanta, upon the bond sued on ; for, If a creditor by bond request the obligor to pay a sosa ©f money to a particular person and agree that sash payment shall be allowed as a payment of so much of the obligation, there is no doubt that it may accordingly be treated as a payment or satisfaction to that extent» And it cart make no difference whether the request be at or after the execution ©f the obligation-; since, if the former, it is a continuing request, and, until countermanded, authorises the debtor, in confidence thereof, t© make the payment t© a third person. Therefore, the defendant was entitled to credit on the bond for what he paid to the Clerk under the agreement. But that was all he was entitled to, and he could not ask for a verdict, that he had paid or satisfied the whole sum mentioned in the bond, by having paid a less sum to or for the plaintiff — since that, in' law, is not such payment or satisfaction.

Pee Curiam Judgment reversed and venire de n&oa.