GRANT v. HUGHES. estate, and charged against said Drewitt's estate in said setsettlement of $257.50, $150.44 and $62.07, amounting to $470.01, was erroneous and a fraud upon the estate of Stephenson's intestate, Drewitt, and was illegal, and that Stephenson's estate, instead of being credited with or allowed five per cent. commissions on $470.01, was only entitled to five per cent. commissions on $260.66, and that the amount of commissions allowed said Hughes as executor, &c., was $10.40 more than should have been allowed in said settlement. II. That the purchase of the land described in the pleadings by said Stephenson, through J. D. Vinson, was a fraud upon the estate of his intestate, the said Drewitt, and that the defendant, as executor of the said Stephenson, instead of being charged with $500 and interest from July 3, 1875, in the said settlement, as the proceeds of sale of said land, should have been charged with one thousand dollars, the amount of its sale to Lawrence Lassiter, with eight per cent. interest thereon from August 20, 1875, or, in other words, the estate of E. J. Drewitt ought to have been credited with four hundred and ninety-four dollars and eighty cents more than was given credit in said settlement, on account of said fraudulent sale of said land, with eight per cent. interest thereon, from August 20, 1875, equal to five hundred and eighty-three dollars and nineteen cents, but this amount should be diminished by five per cent. thereof for commissions, $29.15, which would leave the additional amount to which Drewitt's estate was entitled to be five hundred and fifty-four dollars and four cents. III. That at the time of said settlement, said Drewitt's estate, instead of being entitled to one hundred and nineteen dollars and twenty-three cents, was really entitled to seven hundred and eighty-four dollars and thirty-three cents in addition thereto. The referee therefore decided that the plaintiff was entitled to judgment against the defendant, as executor of W. T. Ste GRANT v. HUGHES. phenson, in the sum of seven hundred and eighty-four dollars and thirty-three cents, with interest thereon at the rate of six per cent. per annum from November 14, 1877, till paid." The defendant filed numerous exceptions to the report of the referee, which were overruled by the Court, and judgment was rendered in accordance with the findings of fact and conclusion of law therein for the plaintiff. From this judgment the defendant appealed, and assigned for error the following: 1st. Because the Court overruled the defendant's exceptions. 2d. Because the plaintiff was estopped and barred of recovery by the settlement made on the 14th of November, 1887, between Wright, adm'r, &c., of Drewitt, and Hughes, ext'r of Stephenson. 3d. Because the Court, of its own motion, at Fall Term, 1884, ordered the reference before the defendant's plea in bar had been passed upon by the jury. 4th. Because the judgment is contrary to the law and the evidence of the case. 5th. Because of any and all other errors appearing upon the face of the record. Messrs. R. O. Burton and W. C. Bowen, for the plaintiff. Mr. T. N. Hill, (Mr. R. B. Peebles also filed a brief), for the defendant. DAVIS, J., (after stating the case). The first exception. to the ruling of the referee was the overruling defendant's objections to questions one and five asked witness R. B. Peebles by plaintiff, and admitting his answers, relating to the collection of the notes executed by Drewitt to Long. This objection was based upon the ground, that the witness was incompetent to testify to anything connected with the notes, they having been executed prior to August, 1868, and the GRANT v. HUGHES. witness having had an interest in them, or in the collection of them. This objection cannot be sustained. The compensation to which the witness was entitled for his services as counsel, gave him no such interest in the notes as would disqualify him. Slocum v. Newby, 1 Murphy, 423; Molyneux v. Huey, 81 N. C., 106; Syme v. Broughton, 85 N. C., 367; Borden v. Gully, 92 N. C., 127; and White, Adm'r, v. Beaman, Ext'r, decided at this Term. The second objection was to the admission of the deed from J. D. Vinson to W. T. Stephenson, and the deed from the said Stephenson to Lawrence Lassiter. It is admitted that the deed from Vinson to Stephenson (dated August 20th, 1875, for $600,) is for the same land as that conveyed by W. T. Stephenson, as administrator of Drewitt, to J. D. Vinson, and it was clearly relevant as tending to show the true character of the transaction. The third objection was to the question asked R. T. Stephenson in regard to the transfer of his bid, and to the answer that it was assigned to J. D. Vinson at the request of W. T. Stephenson. This, like the last, was admissible as tending to show the true character of the transaction. The same witness was asked if he had not been in the habit of attending sales of land conducted by executors, administrators guardians, &c., and if he did not know that it was customary with them to get some friend to run up property, so as to prevent it from being sacrificed by an inadequate price, and if he did not know from his own experience and observation, that this has been often done by conscientious and honest men conducting such sales. These questions were excluded as irrelevant and immaterial, and this is also assigned as error by the defendant. We suppose it was the purpose of the defendant, to show the GRANT v. HUGHES. good faith of his testator, by showing that other fiduciaries had, under similar circumstances, acted as he had. In no view of this case can we conceive such evidence as relevant or competent, and there was no error in overruling the objection. There were numerous other exceptions to the ruling of the referee upon questions asked by the defendant and objected to by the plaintiff, and to questions asked by the plaintiff and objected to by the defendant, which were immaterial and irrelevant, and which we deem it unnecessary to pass upon more particularly. After a careful examination, we find no error in the judgment of the Court below in sustaining the ruling of the referee upon points of evidence and his findings of facts. But exception is taken "to all of the referee's conclusions of law, and to all he decides." "For that the plea in bar set up by the defendant should first have been decided by a jury before reference was ordered, and he demands that his said plea in bar shall be tried by a jury. He should have found that the plaintiff was barred of recovery by Wright's settlement with Hughes." This was the point chiefly relied upon by the defendant in this Court. First, as to the demand that the defendant's plea in bar shall be tried by a jury. Undoubtedly the defendant had a right to have his plea in bar, or any other issue of fact, passed upon by a jury, but this right may be waived, as authorized by Art. iv., §13 of the Constitution. Was it waived? The order of reference was made at Fall Term, 1884, without objection, but the defendant says, "before his plea in bar was passed upon by the jury." If he wished to have it passed upon by a jury, he should have claimed the right before the reference was ordered, for when matter in bar is relied on, it ought to be determined before the reference is had. It puts in issue the very cause of action, and GRANT v. HUGHES. the defendant has a right to have it first passed upon, because, if decided in his favor, the delay and expense of a reference may be avoided. Clements v. Rogers, 95 N. C., 248; Neal v. Becknell, 85 N. C., 299; Commissioners of Wake v. City of Raleigh, 88 N. C., 126. While the record does not show that the reference was by consent, the order was made by the Court, without objection or opposition, and this was equivalent to assent and a waiver. Atkinson v. Whitehead, 77 N. C., 418. If, at the time the order of reference was made, the defendant reserved the right, as was done in the case of McPeters v. Ray, 85 N. C., 462, to have the issue passed upon by the jury, it would have availed him; but this was not done, and if the suggestions had been made, it would have been at once apparent in this case, that the issue should, if insisted upon, be determined by a jury before the reference, and if refused, an appeal would lie. It was earnestly insisted that the receipt given by Wright, administrator, &c., to Hughes, executor, &c., was conclusive, if not as a receipt, then as an accord and satisfaction, and we were referred to numerous authorities to sustain this view. We regard it as well settled, that parol evidence is inadmissible to vary or contradict a written agreement or contract, and we regard it as equally well settled, that if a debtor or obligor pay a less sum than is due, either before the day it is due, or, for the convenience of the payee or obligee, at a place other than that named, or upon any consideration advantageous to the payee or obligee, or as a compromise upon an honest difference as to the amount due, it is good as an accord and satisfaction, and binding; and we think the authorities relied on by the defendant do not go beyond this. In Smith v. Brown, 3 Hawks, 580; relied on by the defendant, the written paper contained something more than a mere receipt for money. TAYLOR, C. J., said: "It is true, that by |