¶1*615The opinion of the court was delivered by
¶2The judgment before the justice, in this case, was rendered for the plaintiffs, from which the defendants appealed.
¶3The account of the defendants, which was pleaded in offset, exceeded the sum of ten dollars, and on its disallowance by the court, an appeal was properly allowed. There was no evidence that the account was fictitious, or filed for the purpose of obtaining the right of appeal; and where that does not appear, the right of appeal is given on the disallowance of the account. We have no occasion, therefore, to pass upon the question, whether an appeal could be taken on the allowance of the plaintiffs’ account, as the right is secured on the defendants’ account in offset. The motion to dismiss was, therefore, properly overruled.
¶4From the facts found by the auditor, we think also, that the judgment of the County Court should be affirmed, on the merits of the case. The plaintiffs’ account consisted of a charge for plank, and a three dollar uncurrent bill, amounting in all, exclusive of interest, to the sum of nine dollars and twenty-two cents ; and this account, seems not to have been arranged in the general settlement of their accounts, by the parties, in August, 1845. The auditor finds that this account was to be paid in freight.
¶5In settlement of this account, the auditor states, that on the 8th day of January, 1846, the defendants gave the plaintiffs an order on one Mr. Robbins, for the 'amount of the account, payable in the same manner. The order was received by the plaintiffs, and has been retained by them. We learn from the report also, that after the order was received by the plaintiffs, Robbins did labor of this kind for the plaintiffs, to the amount of over four hundred dollars, and that an open running account existed between them, until about the time of the failure of Robbins, in the spring of 1849. This order, Robbins, soon after it was given, promised to pay them as soon- as he . could.
¶6Under these circumstances, it was the duty of the plaintiffs to have charged Robbins with the amount of that order, and apply thereon the account which subsequently accrued; and then it would have operated as payment of this account against the defendants. There was no propriety in the plaintiffs retaining that order, and paying Robbins otherwise for his labor, and then, after his failure, calling upon the defendants for the amount of this account.
¶7*616The order should be considered and treated as paid, in the subsequent dealings between the plaintiffs and Robbins. This view of the case is not affected by the fact, that the plaintiffs had overpaid Robbins, and that he was indebted to them, at the time of his failure, on their general account. After the plaintiffs’ acceptance of that order, and the promise of Robbins to pay the amount to them, the defendants have a right to insist upon the application of so much of the subsequently accruing account for the freight, as was sufficient to satisfy the order, and it was .the duty of the plaintiffs, to have withheld a sum sufficient for that purpose.
¶8We think, therefore, that this account of the plaintiffs, should be considered and treated as paid by that order.
¶9The judgment of the County Court, which was for the defendants, must be affirmed.