the remedy by action for the debts, although no such notice has CH. XXIII. been given, unless there be an express stipulation in the deed, that the remedy by action should not be adopted (g). There cannot be an accord and satisfaction by delivery merely; for it must appear that the thing delivered was not only given, but accepted in satisfaction (h). But there may be an acceptance in satisfaction without delivery. Thus where, to an action for use and occupation, the defendant pleaded, that the plaintiff seized the defendant's goods as a distress; that they were of sufficient value to satisfy the rent and costs; and that the plaintiff never sold the goods, but, with the assent of the defendant, retained them in satisfaction of the rent; this was held to be a good bar (i). It is clear on authority that an agreement between debtor and creditor that the creditor shall accept from the debtor a less sum in money than the whole debt is no accord and satisfaction, but that the creditor can treat the payment of such less sum as part payment only, on the ground that there was no consideration for the agreement, and sue for the residue of the debt as if no such agreement had been entered into. This is the result of Foakes V. Beer (k), where the House of Lords held that an agreement between judgment debtor and creditor, that in consideration of the debtor paying down part of the judgment debt and costs, and on condition of his paying to the creditor or his nominee the residue by instalments, the creditor would not take any proceedings upon the judgment, did not prevent the creditor after payment of the whole debt and costs from proceeding to enforce payment of the interest upon the judgment. 8. 2. Defences (Accord and Satisfaction). There may be an acceptance in satisfaction without deli very. Payment, on take less than whole, no agreement to satisfaction. Foakes v. Cumber v. Wane. of debt But it is equally clear (1) that an agreement to take by cheque Payment of or other negotiable instrument a less sum than the whole debt by negotiable part due is a good accord and satisfaction; and the authorities which instrument. establish this have been recognised and followed by the Court of Appeal (m) subsequently to Foakes v. Beer, this very singular exception (n) to an absurd rule (o) being in law founded on the (g) Emes v. Widdowson (1829), 4 C. & P. 151. (h) Stead v. Poyer (1845), 1 C. B. 782; Hardman v. Bellhouse (1842), 9 M. & W. 596, 600. And as to what is an acceptance in satisfaction, see the latter case. (i) Jones v. Sawkins (1847), 5 C. B. 142, 153. (k) Foakes v. Beer (1884), 9 App. Cas. 605; following Pinnel's case (1602), 5 Rep. 117 a, and Cumber v. Wane (1718), 1 Sin. L. C. (1) See Sibree v. Trip (1846), 15 M. & W. 23; Curlewis v. Clark (1849), 3 Ex. (m) In Bidder v. Bridges (1887), 37 (n) See per Grove, J., in Goddard v. O'Brien, supra. (0) See Couldery v. Bartrum (1881), 19 Ch. D. 394, C. A. ; and the judgment of Lord Blackburn in Foakes v. Beer. Bidder v. Bridges. assumption that the circumstance of negotiability makes a different thing and a thing more advantageous to the creditor. (b) Satisfaction must be Complete. Every accord ought to be full, perfect, and complete; for, if divers things are to be performed by the accord, performance of part is not sufficient; or if the thing is to be performed at a day to come, tender and refusal is not sufficient without actual satisfaction and acceptance (p). Accord and satisfaction cannot be pleaded to a deed before breach (q); but may be pleaded to a claim for damages accrued under the deed (r). And so, if an award be made under a submission by deed, and an action be brought for a breach of the award; accord and satisfaction, by a parol agreement, may be pleaded in answer to such breach (s). On the other hand, if it appear that the accord and satisfaction on which the defendant relies has, by his own act or default, become wholly inoperative and void, it will be thereby defeated. Thus where, to debt for money had and received, the defendant pleaded the giving and acceptance of an annuity deed, in satisfaction of the plaintiff's claim; and the plaintiff replied, that no memorial of such deed had been enrolled pursuant to the statute (t), and that, he having brought a previous action against the defendant for arrears of the annuity, the defendant had pleaded such want of enrolment; this was held to be a good answer to the plea (u). (c) By One of Many Parties. Where several plaintiffs sue for a joint demand, accord and satisfaction with one of them may be pleaded in bar of the action, without alleging any authority from the others to make the settlement in question (x). But where the claim is on a money bond to two or more obligees, there is a presumption at equity, that the obligees are tenants in common, and not joint tenants both of the debt and any security held for it, and consequently a discharge by one (p) Peytoe's case (1612), 9 Rep. 79 a ; (9) Mayor of Berwick v. Oswald (1853), (r) See cases cited, 1 E. & B. 303. (t) 53 Geo. 3, c. 141, now repealed by 17 & 18 Vict. c. 90, and replaced by 18 & 19 Vict. c. 15, s. 12. (u) Turner v. Browne (1846), 3 C. B. 157. (x) Wallace v. Kelsall (1840), 7 M. & W. 264; see the explanation of this rule on the ground that a joint demand "survives," per Wills, J., in Steeds v. Steeds (1889), 22 Q. B. D. 537, at p. 541 ; and p. 16, ante. obligee is not a defence against the other suing for his proportion CH. XXIII. of the debt. But this presumption may be rebutted (y). But satisfaction of a bill, as between a drawer or indorser, and an indorsee, whether made before or after the bill becomes due, does not enure as a satisfaction on behalf of the acceptor, or operate to discharge him from liability to the indorsee; because the contracts created by the bill, as between the drawer and the acceptor, and as between the acceptor and the indorsee, are essentially distinct (z). (d) By Stranger. It was at one time thought that an accord and satisfaction by a stranger is not a good bar (a). But the correct doctrine would appear to be, that satisfaction made by a stranger to a party having a cause of action, and adopted by the party liable to the action, is a good bar to an action for such cause (b). And so it would seem that, if the defendant and the party from whom the satisfaction proceeded, stood in the relation of principal and agent, such satisfaction would be a good bar for the defendant (c). So if a second policy be effected on the same vessel, in exactly the same sum, and upon the same terms, payment by one insurer will operate by way of satisfaction to the other (d). s. 2. Defences (Accord and Satisfaction). By a stranger, SECT. 3.-That a Bill of Exchange, or other Negotiable It is a good defence to an action for the recovery of a simple contract debt, that the plaintiff has taken from the debtor, for and on account of the debt, a negotiable (ƒ) bill or note for the amount, accepted, made, or indorsed by the debtor, and payable to the creditor himself, or to a third person (g); also that the (y) Steeds v. Steeds (1889), 22 Q. B. D. 537. (z) Jones v. Broadhurst (1850), 9 C. B. 173; Goodwin v. Cremer (1852), 18 Q. B. 757. (a) See Edgecomb v. Rodd (1813), 5 East, 294, 301; 7 R. R. 700. (b) Per Cur., Simpson v. Eggington (1855), 10 Exch. 845, 847; Jones v. Broadhurst (1850), 9 C. B. 173, 193; Belshaw v. Bush (1851), 11 C. B. 191, 207; James v. Isaacs (1852), 12 C. B. 791; Fitz. Abr. Barre, pl. 166; and see Co. Litt. 206 b. (c) Thurman A. & E. 453, 460. C.C. V. Wild (1840), 11 (g) Kearslake v. Morgan (1813), 5 T. R. 513. So, it has been held to be a good defence, that the defendant, at the request of the plaintiff, accepted for the amount of the debt, a bill to which the name of a drawer had not been attached; and that the bill so accepted, was given to, and received by, the plaintiff, in satisfaction of the debt. Simon v. Lloyd (1835), 2 Cr. M. & R. 187. 41 Taking of bill repayable either to creditor, or third person. CH. XXIII. plaintiff has accepted from a third party, a bill or note made, s. 3. Defences (Bill of Exchange taken). Taking bill or note suspends the plaintiff's right of action. accepted, or indorsed by such third party, and delivered by him to the plaintiff for and on account of the debt (h). And where the bill or note is made payable to a third person, or is made by a third person, a statement of defence, which alleges the delivery by the defendant, and acceptance by the plaintiff of such bill or note, is a sufficient answer in the first instance (i). But a statement of defence, which alleges that a negotiable instrument was given for and on account of the debt, by which the defendant promised to pay to the plaintiff, or order, a sum of money, will not be a good answer, unless it state further, either that such instrument is still running, or that it has been endorsed over by the plaintiff (i). Nor is it a good defence, to an action against co-partners, that the plaintiff has taken the acceptance of one of the partners, for and on account of a debt due to the plaintiff from the firm; even although it may appear that he has received from the acceptor, or from his estate, if he has become bankrupt, part payment of the acceptance,―these facts being held not to be sufficient, per se, to discharge the other partners (k). And this defence is not founded on the notion, that the bill or note operates as an absolute payment or extinguishment of the original debt, or that it changes its nature, or amounts to an accord and satisfaction: for the right to sue upon the original demand revives on the dishonour of the bill or note (). But where the creditor accepts a bill or note on account of his debt, it is held to be taken by him, as a qualified or conditional payment (m); and accordingly, during the currency thereof, the original remedy is suspended or in abeyance (n). Thus, if a bill be renewed, no action can be maintained upon the original bill, whilst such renewed bill is running (0). And where a renewed bill is taken and paid, the party is not justified in suing on the original bill, which was left in his hands, although costs incurred in taking a warrant of attorney, as an additional security, are left unpaid, contrary to agreement (p); (h) Belshaw v. Bush (1851), 11 C. B. 191. (i) Per Cur., Price v. Price (1847), 16 M. & W. 232, 241. Where the bill was given to a third party in trust for the plaintiff, the same rules apply as where it was given to the plaintiff himself. See National Savings Bank v. Tranah (1867), L. R., 2 C. P. 556. (k) Bottomley v. Nuttall (1858), 5 C. B., N. S. 122; Keay v. Fenwick (1876), C. P. D. 745, C. A. (1) Puckford v. Maxwell (1794), 6 T. R. 52; Owenson v. Morse (1796), 7 T. R. 64. (m) Per Cur., Crowe v. Clay (1854), 9 Exch. 604, 608, Ex. Ch. ; per Pollock, C. B., Griffiths v. Owen (1844), 13 M. & W. 58, 64 per Alderson, B., James v. Williams (1845), 13 M. & W. 828, 833; per Cur., Belshaw v. Bush (1851), 11 C. B. 191, 206. (n) Ex parte Matthew (1884), 12 Q. B. D. 506, C. A. (0) Kendrick v. Lomax (1832), 2 C. & J. 405. (p) Dillon v. Rimmer (1822), 1 Bing. 100. but if there be an agreement to pay interest on the original bill, whilst the renewed bill is running, such interest may be recovered by action on the original bill, even after payment of the renewed bill (q). Again where a debtor delivers a negotiable bill or note to his creditor, and the latter, at the time of receiving the same, agrees to take it in payment of the debt, and to take upon himself the risk of the bill or note being paid; or if, from the conduct of the creditor, or the special circumstances of the case, such an agreement is to be implied; the effect of it will be, to destroy the right of action for the debt, and to leave the creditor without remedy, except upon the instrument (r). And where a bill or note is given and accepted in satisfaction and discharge of a debt, it would appear not to be essential that the bill or note, to have this effect, should be negotiable (s). But it seems that the omission to require the debtor's indorsement, on taking from him on account of his debt, the bill of a third person, is not per se, sufficient proof that he was not to be liable for the debt, if the bill were dishonoured (t). The mere fact of the creditor having taken a bill or note on account of his debt, will not suspend his right of action to recover such debt, during the currency of the instrument, provided such instrument be on an insufficient stamp (u); or be a forgery (x) ; or if he can show a fraud of the debtor, or that he was aware at the time of giving the bill or note, that the parties thereto were insolvent (y). CH. XXIII. s. 3. Defences (Bill of Exchange taken). When it operates as payment. When taking a bill or note will be no defence. which creditor cannot On the other hand, there are some cases in which even the non- Cases in payment of the bill or note, when due, will not give the creditor a right of action for the original demand. Thus, the rule with regard to all negotiable instruments is, that if they are taken on account of a pre-existing debt, they operate as a discharge of that debt, unless the holder does all that the law requires to be done, in order to obtain payment of them (z). Accordingly, if payment be made in the notes of a banking company, the holder is bound, within a reasonable time, either to circulate them, or to present them for payment. And if he do (q) Lumley v. Hudson (1838), 5 Scott, 238. (r) Sard v. Rhodes (1836), 1 M. & W. 153; Sayer v. Wagstaff (1844), 5 Beav. 415. (s) See Lewis v. Lyster (1835), 2 Cr. M. & R. 704, 706. (t) Ex parte Blackburne (1804), 10 Ves. 203; 7 R. R. 389. (u) Cundy v. Marriott (1831), 1 B. & Ad. 696. (x) Per Littledale, J., Camidge v. (2) Per Bayley, J., Camidge v. Allenby sue on original demand, although bill not paid. |