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THE LIKE IN DEBT ON SIMPLE CONTRACT. Same as the above, except, instead of saying, after the making of the several promises and undertakings, say, after the accruing of the said debt, and stating the satisfaction to be of the debt, instead of promises and underlakings, with the usual commencement and conclusion in debl: post, title “ Debt.”
THE LIKE IN COVEXANT. (Commencement as usual, see post, “ Covenant.") Because he saith, that he, the said deft., before the commencement of this suit, to wit, on, &c., at, &c. aforesaid, paid to the said plt. the sum of £- , in full satisfaction and discharge of the said sum of £- , in the said breach of covenant mentioned, and of all the damages by the said plt. sustained, by reason of the non-payment thereof, which said sum of £— , the said plt. then and there accepted and received of and from the said deft., in full satisfaction and discharge of the said sum of £ , in the said breach of covenant mentioned, and of the damages of the said plt. by him sustained, by reason of the said breach of covenant. And this, &c. (Conclude with a verification, post,“ Covenant;" see the form, 3 Chit. Pl. 1002.)
PLEA OF ACCORD AND SATISFACTION IN TRESPASS, | *26) "(.Aclion on, as usual, see " Trespass.") Because he says, that, after the commit
ting of the said trespasses, as aforesaid, and before the exhibiting of the bill of the said plt, against him the said deft, in this behalf (or if in C. P. or by original, before the commencement of this suit), to wit, on, &c., at, &c. aforesaid, he, the said deft., paid to the said plt. the sum of £— of lawful money of Great Britain, for and in full satisfaction and discharge of the said trespasses in the said declaration mentioned ; and which said sum of £- , he, the said plt., then and there accepted and received of and from the said deft., in full satisfaction and discharge of the said trespasses, and each and every of them, &c. (Usual conclusion : see “ Trespass;" for the general issue, see ib.)
REPLICATION TO A PLEA OF, IN ASSUMPSIT. And the said plt. says, that, by reason of any thing in the said plea alleged, he ought not to be barred from having and maintaining his aforesaid action against the said deft., because he says that he, the said plt., did not accept (or, if there has been no delivery whalever, that he, the said deft., did not deliver), the said one ton of Riga hemp and the said one hundred weight of Russia rallow, in full satisfaction and discharge of the said promises and undertakings and causes of action, and of all the sums of money in the said declaration mentioned, in manner and form as the said deft. hath above alleged. And this the said ple. prays may be inquired of by the country, &c.
REPLICATION TO PLEA OF DELIVERY OF, PROMISSORY NOTE, DENYING THE DELIVERY. And the said plt. (precludi non, as before.) Because he says, that the said deft, did not make and deliver to him, the said plt., the said supposed promissory note in the said plea mentioned, for and on account of the said sum of £- , parcel of the said several sums of moi
the said declaratio mentioned, and the said several promises and undertakings relating thereto; nor did the said plt. take or receive of and from the said deft. the said promissory note, for and on account of the same sum of £— , and the said promise and undertakings relating thereto, in manner and form as the said plt. hath above, in his said plea in that behalf, alleged. And this the said plt. prays may be inquired of by the country, &c. (If a good note or bill has in fact been given, plt. should then reply the non-payment.)
Evidence for Defendant. In General.] The affirmative of the issue lies on the deft., if plt. take issue directly on the plea; but, if he allege new matter in his replication, it is otherwise. . In order to support this defence, deft. must prove the agreement between him and plt, to accept the satisfaction, and that such satisfaction was reasonable, perfect, certain, and executed, Heathcote v. Crookshanks, 2 T. R. 26, 9 Rep. 79, and proceeded from the deft.: Edgecombe v. Rodd and others, 5 East, 294; 1 Smith, 515; Cro. El. 541. The delivery of the goods, specialty, or bill, &c. must be proved, unless, indeed, the accord and satisfaction be pleaded specially,
and plt. does not deny the delivery, but merely the acceptance in satisfaction. It must be proved the delivery was as a satisfaction for the cause of action stated in the declaration, unless plt., in his replication, admit the delivery in satisfaction. If a bill or specialty be given, it should be proved, unless admitted by the replication : see " Bills of Exchange,”
_" Deeds." The following rules will show as to what is necessary to constitute this a defence. .
The Satisfaction must be a reasonable and complete Satisfaction of the thing demanded, and operate as an extinguishment of the original cause of action. Therefore, acceptance of a less cannot be a satisfaction, in law, of a greater sum, unless there be a release or some consi. deration for the relinquishment of the residue, Fitch v. Sutton, [*271 5 East, 231, Walker v. Seaborn, 1 Taunt. 526; and this, though an additional security be given, 1 Str. 426. “An agreement between a debtor and creditor, that part of a larger sum due should be paid by the debtor, and accepted by the creditor as a satisfaction for the whole, might, under special circumstances, operate as a discharge of the whole debt. But then the legal effect of such an agreement must be considered to be the same as if the whole debt had been paid, and part had been returned as a gift to the party paying:" per Holroyd, J., Thomas v. Heathorn, 2 B. &. C. 481, 2, 3 D. &. R. 647, s. C. See infra.
But payment and acceptance of a part of a debt, before the time it becomes due, or at a place where it was not payable, in satisfaction of the whole, may be a sufficient satisfaction: Co. L. 212, b. So, if a third person guarantee the payment of the less sum, Steinman v. Magnus, 11 East, 390; so, if the debtor assign all his effects: Heathcote v. Crookshunks, 2 T. R. 24. See further, as to composition, post, title “ Composition.”
And so if the debtor give a chose in possession for a chose in action, as a horse, or other property in specie, Heathcote v. Crookshanks, 2
T. R. 24, Co. L. 212, b. Destroying certain documents upon plt.'s undertaking, in consideration thereof, not to bring an action for slander, is a sufficient consideration, Lane v. Applegate, i Slark. 97. Conferring a benefit to a third person, at the debtor's request, is sufficient: Skin. 391. So where A. owes B. £100, and B. owes C. £100, and the three meet, and it is agreed between them that A. shall pay C. £100, the payment of B.'s debt would be sufficient: Tatlock v. Harris, 3 T. R. 180; Wilson v. Copeland, 5 B. 8. 1. 228: Wharton v. Walker, 4 B. & C. 163, 6. But, where J. C., being indebted to S., and R. C. being indebted to S. and also to J. C., it was verbally agreed between the three, that S. should transfer the debt due to him, from J. C. to R. C., and S., in pursuance of such agreement, delivered to R. C. an account, in which he, R. C., was charged with the debt due from J. C. to S., it was held that such rendering of account amounted at most to an accord, but not a satisfaction : Cuxon v. Chadley, 3 B. 8. C. 591. And where it was agreed, in an action on a bill, that deft. should renew the bill, and give a warrant of attorney as security, which he did, omitting to pay the costs it was held not to be a satisfaction, and that the plt. might render the bill available: Norris v. Aylett, 2 Camp. 329.
It is said that a release of an equity of redemption is not a sufficient satisfaction, 2 Wils. 86; nor is an agreement that the parties should be quit of actions against each other : 1 Rol. A. 128, l. 40; Com. D. Acc. B. 1. But, if either party has done any act which would deprive him of his right of action, it would operate as a satisfaction : Lane v. Applegate, 1 Stark. 97. “ Payment after the day is good, by way of discharge, but not of satisfaction:" p. Holroyd, J., Francis v. Crywell, 5 B. & A. 888, citing 4 Mod. 250. The mere fulfilment of an act which a party is bound to do, is no satisfaction: Edgecombe v. Rodd and others, 5 East, 302. A deed before breach cannot be discharged by accord and satisfaction without a deed, Kaye v. Waghorn, i Taunt. 428, Com. D. Ple. 2, v. 8; but it may after breach: Com. D. Acc. A. 1, &c.; Scholey v. Mearns, 7 East, 150; 1 Moore, 358, 460. The accord and satisfaction must be before action brought; or, if it be afterwards, it must be proved to have been in satisfaction of the costs and damages, and specially pleaded : Francis v. Crywell, 5 B. & A. 886; 1 D. 8. R. 546, s. C.
tisfaction: Bol be discharge duhet 28, como
contract is the speciality, and 19 10-13 , no satis
A Specialty Security, when co-extensive, operates as a satisfaction of a simple contract debt or security; and is a satisfaction, as the simple contract is merged in the specialty, Cro. C. 415, Bac. A. Debt. G.; but but not if the specialty be void, or be taken merely as a collateral or ad
ditional security, and reciting a pre-existing security: Towpenny [*28] v. Young, 3 B. 8. C. 210-1; *Solly v. Forbes, 2 B. & B. 38.
Judgment recovered is, in itsell, no satisfaction, until payment be obtained upon it: and Leblanc, J., said, “the giving of another security, which, in itself, would not operate as an extinguishment of the original one, cannot operate as such by being pursued to judgment, unless it produce the fruit of a judgment: Drake v. Mitchel, 3 East, 259; see “ Judgment;" as to composition deeds, see post, “ Composition.”
[*28] Yudgment recoveredianc, J., said, “thextinguishment ont, unless
not operabeing purs. Mi
A Bill of Exchange, or Promissory Note, &c. will sometimes operate as an accord and satisfaction. A person, by taking a bill or note in satisfaction of a former simple contract debt, or a simple contract debt created at the time, is precluded from afterwards waving it, and suing the person who gave it him for the original debt before the bill is due : for the taking a bill or note is prima-facie evidence of satisfaction, and amounts to an agreement to give the person delivering it credit for the time it has to run: Stedman v. Gooch, 1 Esp. Rep. 3; Chit. B. 95. But plt. may show the bill was not taken in satisfaction, ib.; and, if the bill be dishonoured, he may sue for the original debt, or on the bill, Puckford v. Maxwell, 6 T. R. 53, Bishop v. Rowe, 3 M. & S. 362, or if the bill be waste paper, as being of no kind of value, 1 Esp. Rep. 5, Chit. B. 96, or drawn on a person who has no effects of drawer's in hand, and refuses to accept: ib.; 12 Mod. 517. The taking a bill or note does not prejudice a prior specialty security: 2 V. & B. 416.
Proof of an express agreement by a creditor to take a bill or note as payment, and incur the risk of its being honoured, will amount to a payment or satisfaction of the debt, whether the bill or note be afterwards paid or not: Owenson v. Morse, 7 T. R. 66; Brown v. Kewley, 2 B. & P. 518. And a bill or note will, in favour of any party to it, who would be entitled to bring an action on paying it, operate as a satisfaction of any debt or demand for which it was given, if the receiver or holder make it his own by laches, Bayl. 171, Bridges v. Berry, 3
Taunt. 130; as, if he do not present it in proper time for acceptance or payment, Bishop v. Rowe, 3 M. & S. 362, Soward v. Palmer, 8 Taunt. 279; or binds himself by agreement to allow an extra time for payment, Tindal v. Browne, 1 T. R. 167, Sproat v. Mathews, ib. 186, or neglect to give due notice of a failure in the attempt to procure a proper acceptance or payment: unless indeed in any of these cases the bill or note were on an improper stamp: Bayl. 172 ; see also 3 & 4 Ann. C. 9, s. 7. And, if the holder or receiver lose the bill, it will, in some cases, be deemed a satisfaction of the debt: Pierson v. Hutchinson, 2 Camp. 211; Dangerfield v. Wilby, 4 Esp. Rep. 159; Chit. B. 147. Post, “ Bills of Exchange.”
There is a distinction between satisfaction and extinguishment, sometimes essential to be remembered : “ as the holder's claim upon a bill or note may be extinguished as to some parties, and remain entire as to others; but, if his claim is satisfied as to any, it is satisfied as to all :" Bayl. 267. But a bill or note, to be a satisfaction for a debt, must be equivalent to or larger than the sum due. Therefore, in an action for £1000, and the deft. pleaded that, upon an account stated, he was found indebted in £400; and that he accepted a bill drawn upon him for that sum by the creditor, on account of the several promises, &c., it was held, that the giving a bill for £400 was not, in point of law, a satisfaction for a debt of £1000, and that plt. might recover the difference, Thomas and another v. Heathorn, 2 B. d. C. 477; Str. 426 ; unless there be an additional security given, as an undertaking by a third party : Steinman v. Magnus, 11 East, 390.
The Accord must be certain.] An accord that the deft. shall employ workmen in two or three days, is bad : 4 Mod. 88. An accord to pay a *less sum on the same or at a subsequent day, is bad, [*29) Fitch v. Sutton, 5 East, 230; and performance of an uncertain accord will not aid the defect: 3 Lev. 189; Yel. 184.
The Accord must be executed.] An accord must be completely executed before it can produce any legal obligation or effect; and part execution of an accord and tender of the residue is insufficient : 5 Co. 79, b.; 2 H, B. 319; Walker v. Seaborne, 1 Taunt. 526; Fitch v. Sutton, 5 East, 280. An accord to do a thing at a future day is good, but it must be executed before action brought : 1 Rol. A. 129, l. 17. And, where there is an agreement to pay money or deliver goods in satisfaction, it is not sufficient to show that he has always been ready to pay the money, or deliver the goods, or even a tender and refusal; but an actual acceptance thereof by plt. must be proved : 9 R. 79; 1 Ld. Raym. 122; 2 N. R. 148; 3 East, 251; Beatson v. Shank. If a party agree that the debtor shall pay a sum of money, or perform some act at a future day as a satisfaction, this agreement is not available as a satisfaction before that period : 2 Keb. 851; Co. D. Acc. B. (4). The performance of one of two things stipulated for by an accord is insufficient; and, where it was agreed that plt. and deft. should deliver up respectively their parts of an indenture to be cancelled, it was held no satisfaction, though deft. had delivered up his part: 3 Lev. 189.
By and to whom.] Satisfaction should proceed from the deft.; for, if it be executed by a total stranger, the deft., cannot avail himself of it: ib.; Cro. E. 541 ; 1 Str. 24. Accord and satisfaction by a copartner is a bar to an action against the others, 9 Co. 79, 6., 12 East, 317; and it seems that acceptance of satisfaction from one joint tort feasor discharges the rest. Dufresne v. Hutchinson, 3 Taunt, 117; 1 Chit. Pl. Accord and satisfaction to one of several coplts. will be so to all: 5 Co. 117, b.; 13 Ed. 4, 6.
Evidence for Plaintiff. If this defence is set up, or intended so to be, plt. should be prepared to disprove it; and the grounds upon which he may do so, may be collected from the foregoing. In the case of a bill or negotiable security given, he should be prepared to show the dishonour of it, and all the requisites that would entitle him to recover against deft. on such bill, &c.: see post, “ Bills of Exchange.”
FORM OF REMEDY ON, 30.
Plea, 31. PRECEDENTS
Count in Assumpsit on an Account stated, 31.
The like in Debt, 31.
Mode of Accounting, 31.
Effect of, 32.
Form of Remedy. The form of remedy to recover money due under an account stated, is by an action of debt or assumpsit: Cro. E. 654. The difficulty and intricacy of the account makes no difference : 5 Taunt. 431.