Lusk v. . Patton , 70 N.C. 701 ( 1874 )

RodmáN, J.

The order of reference is like that in Lash v. Clayton, and what is said in that case as to it, and as to the effect of the award, is applicable here.

The defence is, that there were mutual accounts between the firm of Patton & Alexander and the defendant, which it was agreed should be set off against each other, and upon a settle ment between the parties it was found that the firm was indebted to the defendant in a balance of §10. The award, finds this defence true in fact, and a sufficient one in law.

As the Judge set the award aside, we feel bound to examine as briefly as possible, the reasons assigned in the exceptions to it. The first, third and fourth exceptions are either unfounded or have no weight.

The second is, because the claim of the defendant was for feeding and keeping the horses which the firm used for carrying the mails, under a contract with the Confederate Govern • ment. It is contended that this claim was illegal, and could not be recovered on.

We pass over the question whether the award, being general, the Judge had any right to review it it, either as to fact or law. We also pass over the question, whether the defendant could have recovered against the firm for keeping their horses. For, however these questions may be, it is clear that when the firm bona fide paid the defendant’s account by allowing it on a settlement, it was the same thing as if they had paid it in cash, and money paid under an illegal contract, cannot be recovered back. Commissioners of Catawba v. Setzer, ante 426 at thisRerm, and authorities there cited.

Per Curiam. Judgment reversed and judgment for defendant.