1. There is no doubt that it was within the discretion of his Honor to set aside the judgment and allow exceptions, and there is nothing in the case to indicate that his discretion was arbitrarily or unlawfully exercised There is, therefore, no error in the matter appealed from by the defendant, and this will be certified and there will be judgment against the defendant in this Court for the costs of his; appeal.
2. Whether the sheriff was authorized to receive and the defendant to pay Confederate Treasury notes on the 18th of May, 1863, depends upon whether prudent business men usually received them in payment of such debts at that time in Wake county. This fact is not found either by the referee or by his Honor, and we cannot try the fact. Atkins v. Mooney, Phil. R. 31; Emmerson v. Mallett, Phil. *392Eq. 236; McSay v. Smithermon, 64 N. C. R. 47; Greenlee v. Suddeth, 65 N. C. R. 470.
If prudent business men usually received Confederate Treasury notes at that time and’in payment of such debts, then the sheriff, having no instructions to the contrary, was authorized to receive them and the defendants to pay them, and the debt was satisfied as against the defendants. If the sheriff was not authorized to receive them, then the plaintiff had his election to disregard them altogether and hold the defendants still bound for the whole debt, or to hold the sheriff liable for the value of the Confederate notes and the defendants for the balance.
There is error in the matter appealed from by the plaintiff and this will be certified, and there will be judgment for the plaintiff in this Court for the cost of his appeal.
If the propriety of receiving the Confederate notes is the only fact which the parties desire to litigate, there may, by consent of parties, be a reference to the clerk of this Court to find that fact; in which event this opinion need not be certified nor the cause remanded, but there may be judgment here in conformity to the report of. the clerk.
Per Curiam.Judgment accordingly.