majority">PARKER, Judge.

The order appealed from is in error. The civil liability for a tort which also constitutes a crime may, of course, be compromised and settled just as any other unliquidated claim. A binding settlement of such a claim may result from negotiations or actions taken during the course of criminal proceedings, and the terms of such a binding settlement may be embodied in the judgment entered in the criminal case. Jenkins v. Fields, 240 N.C. 776, 83 S.E. 2d 908, an appeal from rulings on the pleadings, exemplifies such a case. Such is not the present case.

Nothing in the record before us suggests that when the defendant paid the $231.54 into court, as he had been ordered by the District Judge, or when the plaintiff received said sum from the clerk, either party thought plaintiff’s claim was being settled. Even months later, after the present civil action had been brought, defendant did not plead an accord and satisfac*731tion, but pled only that plaintiff “has been fully paid for damage received by him.” This would indicate that defendant considered the prior payment as relieving him of liability, not because it was made pursuant to a binding compromise settlement, but because it represented compensation commensurate with plaintiffs injuries. The District Court in the criminal proceeding had no power, absent plaintiff’s consent, to adjudicate finally his civil claim, and nothing in the present record suggests that the District Judge even thought that he was doing so. Defendant did not plead res judicata, estoppel, or, as above noted, accord and satisfaction, all of which are affirmative defenses. G.S. 1A-1, Rule 8. Indeed, a reading of the record in this case leaves the strong impression that defendant’s counsel, no. less than plaintiff’s, was caught by surprise by the trial court’s ruling dismissing plaintiff’s action.

So far as the record in this case discloses, the matters sought to be litigated in the present action were simply not negotiated, adjudicated, or in any other way finally determined by anything which occurred in or as a result of the criminal prosecution. Defendant is, of course, entitled to credit for the payment previously made by him, Hester v. Motor Lines, 219 N.C. 743, 14 S.E. 2d 794, but on the present record that payment did not finally dispose of his potential civil liability to the plaintiff.

The order appealed from is reversed and this case is remanded to the Superior Court for trial.

Reversed and remanded.

Judges Britt and Baley concur.

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