
    William Vannerson vs. Zebulon E. Pendleton’s Administrators.
    The absence of a party from court, from unavoidable circumstances, may be good ground of new trial: in such case the application will be watched with jealousy, and the power exercised with caution; but if there be no reason to believe that the cause is feigned, a new trial will be granted to prevent a failure of justice.
    Where a plaintiff filed an affidavit, as the basis of an application for a new trial, in which he stated that he was prevented from reaching the court, before the trial took place, by high water; that being in the habit of attending the court regularly in person, he had no counsel who knew anything of the facts of the case; that his demand was just and true, and that injustice had been done him on the trial; and two' other affidavits were filed tending to support the statement of the plaintiff; it was held, that the showing, was sufficient to authorize the granting of a new trial.
    ErkoR from the circuit court of Lawrence county; Hon. Thomas A. Willis, judge. ■
    This was an action of assumpsit brought to the May term, 1843, of the circuit court of Lawrence county, by William Van-nerson against Samuel Prestridge, administrator, and Eliza Pendleton, administratrix of Zebulon E. Pendleton, deceased, on an account for $220, for services as an attorney rendered Zebulon E. Pendleton in his lifetime. The defendants pleaded the general issue. On the 5th day of December, 1843, the cause was tried, and verdict and judgment rendered for the defendants. The plaintiff afterwards moved for a new trial, which being overruled by the court he filed a bill of exceptions, which states that on the trial the plaintiff introduced several witnesses who proved that the services were rendered, and the value of them as charged in the plaintiff’s account, and closed his case. The defendants then read in evidence a letter written by the plaintiff to Edward Englehard, in reference to a balance of $200 due plaintiff for the defence of James Block, from which the following is an extract: “I am induced to believe that you are laboring under a mistake in relation to some of the circumstances. You seem to think that Dr. Z. E. Pendleton and Col. Oats bound themselves to pay me. This is a mistake. I never had their obligation for one cent on that or any other account; and to make it certain I hereby release the estate of the one, and the person and property of the other from all and every liability on that and on all other accounts.” On the trial of the motion for a new trial, the plaintiff read the affidavit of John H. Oats, which stated that he was present when the letter above-mentioned was written, acting as the mutual friend of Edward Englehard and plaintiff, endeavoring to settle some matters in dispute between them; that he, affiant, in part dictated the letter, and he understood the plaintiff as referring only to the fee for the defence of Block, and having no reference whatever to the account sued on. Edward Englehard’s affidavit was also read, which stated that he received and understood the letter as having reference only to thefee for defending Block, and in no manner connected with the account sued on. The plaintiff’s own affidavit was also read, stating that he was in attendance on court during the first week, and was prevented by high water from getting to court the second week until Thursday afternoon, and after the trial of the cause; that being in constant attendance at court in person, he had no counsel who knew anything of the facts upon which it was likely the case would turn; that he had been surprised in consequence thereof, and by the casualty which prevented him from reaching court sooner; that his demand against the defendants was just and true, and injustice had been done him in the trial. The plaintiff, has brought the case to this court by writ of error.
    Vannerson, for plaintiff in error.
    The letter of plaintiff in error, was improperly admitted as evidence of a release for the following reasons.
    1. A release must be made to the party sought 'to be released, and claiming the benefit of it. Perry v. Fleming, 2 
      N. C. Law Rep. 458; Lilley v. Kitzmiller, 1 Yeates R. 30; Peaceable v. Keep; 1 Yeates R. 576.
    2. The supposed release contained in the letter of plaintiff in error addressed to Edward Englehard, is a nudum, pactum: there must be a consideration for a release expressed or proved wherever there has existed a good cause of action against the party claiming the release. 1 Selwyn’s N. P. 108, 109; Bailer’s N. P. 153.
    3. A release without consideration and not under seal, is void. Jackson v. Stackhouse, 1 Co wen, 122.
    4. The court will regard all parts of a release in giving it a construction. Payler v. Homersham, 4 Maulé & Selw. 423.
    5. And general words may be explained by the occasion of speaking them. Knight v. Cole, 3 Lev. 273; Morris v. Philpot, 2 Mod. 108; Morris v. Wilford, 2 Show. 47.
    6. A receipt for £10, with a release of all actions, debts, duties and demands, releases nothing but the £10. 5 Bacon’s Abr. 711; 3 Mod. 277, and authorities cited.
    7. The intention of the parties must be regarded. Lev. 99; Bacon’s Abr. 711, 712.
    8. Where there is a particular recital, and general words follow, these shall be qualified by the recital. Jackson v. Stack-house, 1 Cowen, 122.
    9. The court ought to have granted a new trial on the affidavits of plaintiff, Oats and Englehard, because the reasons set forth in the plaintiff’s affidavit explains the cause of his absence, and the other affidavits explain the intention of plaintiff in writing the letter and the occasion of it.
    10. The verdict was contrary to law and evidence, as the letter was improperly admitted as a release.
   Mr. Justice Clayton

delivered the opinion of the court.

The bill of exceptions in this case, was not taken until after the judgment was rendered ; of consequence, it does not bring up any errors which occurred during the progress of the trial.

The plaintiff has filed an affidavit, as the basis of an application for a new trial, in which he states, that he was prevented from reaching the court, before the trial took place, by high water; that being in the habit of attending the court regularly in person, he had no counsel who knew anything of the facts of the case; that his demand is just and true, and that injustice has been done him on the trial. Two other affidavits were filed, tending to support this statement.

The absence of a party from court, from unavoidable circumstances, may be good ground of new trial. Graham on New Trials, 161; Brooks v. Whitson, 7 S. & M. 513. The application will be watched with jealousy, and the power exercised with caution, but if there be no reason to believe that the cause is feigned, a new trial will be granted to prevent a failure of justice.

In this case, the party has shown enough to authorize the granting of his application.

Judgment reversed and new trial awarded.  