
    M’Cormick vs. Oliver.
    A agreed and promised to pay B three hundred dollars, if B would re-' lease A’s son. from all damage and liability, in consequence of a battery committed by his said son on B. B, in consideration of said promise, executed and delivered the release. Held, that A was liable upon this promise to pay the three hundred dollars, and that B could plead it by way of set oif, in a suit instituted against him by A.
    Oliver sued M’Cormick before a magistrate upon a note under fifty dollars, and obtained judgment, from which the cause by appeal, was carried into the circuit court of Anderson county. The defendant relied upon the following defence: That the son of plaintiff had, without any provocation, greatly injured him by wounding him in the head; that the plaintiff, Charles Y. Oliver, agreed and promised to pay him three hundred dollars if he would release his son from all damages, &c. which was agreed to, and the release accordingly executed and delivered; that it was at the same time agreed, that the note sued on should be deducted out of the three hundred dollars, arid any other claims which the plaintiff had against the defendant, and the plaintiff was to pay to the defendant the balance, which he did pay; and that the note was to have been delivered up to the defendant, but never had been done. The plaintiff read in evidence the receipt of the defendant in full of the three hundred dollars, and insisted that the note had not been settled. He also insisted by his counsel, that the defence in point of law was not a good one; that the note sued on was under seal, and the supposed agreement or accord and satisfaction entered into after it fell due, and which, by the rules of law, he insisted did not discharge the note, if the facts were as contended for by the defendant.
    The circuit court charged the jury, that the note sued on being under seal, a parol accord and satisfaction after it became due, was not a good defence to the action.
    
      Cannon, for the plaintiff in error.
    Jarnagin, for defendant in error.
   Catkon, Ch. J.

delivered the opinion of the court

Oliver’s son greatly injured the person of M’Cormic by wounding him. Charles Y. Oliver, the father, agreed to pay M’Cormick three hundred dollars if he would release the son from the damages. M’Cormick executed the release in due form. M’Cormick owed Charles Y. Oliver a note of hand of thirty-seven dollars, which was to be part of the three hundred dollars, but it was not surrendered to M’Cormick, and some years afterwards Oliver sued M’Cormick on this note before a magistrate. M’Cormick defended himself on the ground of accord and satisfaction, or if this was not the proper plea, on any other applicable to the case.

It is difficult to support the defence upon the foot of accord and satisfaction. But Charles Y. Oliver, in consideration of the release, promised to pay the three hundred dollars. This promise was binding upon him, the release being a good consideration for the promise. 1 Com. Dig. A: 3 Bur. 1663: 1 Taunt. 523.

Charles Y. Oliver having become indebted to M’Cor-mick in a specific sum, the same could be set off, or if there was deducted in payment of the note an amount that covered it, Oliver only retained so much of M’Cor-mick’s money in discharge, and then payment was a good defence. We therefore think the judgment must be reversed, and the cause remanded for another trial.

Judgment reversed.  