there may be other writing on the same paper, amounting to an agreement, provided this does not in any manner control or qualify the former part (m). So a memorandum containing an acknowledment of a receipt of money, but not stamped as a receipt, may be put in evidence, if not offered as proof of a receipt of money, but for other purposes (n).

The 43 Geo. III. c. 126, s. 5, provides, that a person who shall have paid a debt may provide himself with a stamped receipt, and require the receiver to write thereon, and acknowledge thereby the receipt of the money; and also demand payment of the amount of stamp duty paid by the debtor; and if the creditor refuse to give a receipt, or pay the duty, he is subjected to a penalty of 101. In reference to this enactment, it seems that the debtor should not tender the money conditionally, that is, if the creditor will give a receipt, but should tender the money absolutely, or pay it before a witness, and then require the creditor to write a receipt upon a stamped paper, with which at the time the debtor should be provided (o).

Amongst other exemptions (p) are receipts upon (q) bills of exchange, promissory notes, and checks (duly stamped when so required by law), upon the same being paid; receipts upon bank notes; letters by the general post acknowledging the safe arrival of bills of exchange, notes, or other securities for money; and receipts indorsed on stamped deeds for the consideration money, or for money due and paid thereon.

III. ACCORD AND SATISFACTION.

It is laid down as a general principle, that accord without satisfaction is no bar to an action for, or any extinguishment of a debt; that is, that the accord or promise to confer satisfaction must be fully and actually executed and accepted, in order to afford a

(m) Grey v. Smith, 1 Camp. 387; Skrine v. Elmore, 2 id. 407; Odye v. Cookney, 1 M. & Rob. 517. A receipt noticing the terms or consideration of a payment, does not require an agreement stamp; Watkins v. Hewlett, 3 Moore, 211. A receipt for the price of a horse sold, expressing "warranted sound," may be read in evidence as proof of the warranty, without an agreement stamp; Skrine

v. Elmore, 2 Camp. 407.

(n) Id.; Brookes v. Davies, 2 C. & P. 186.

(0) See Laing v. Meader, 1 C. & P. 257; see post, as to Tender.

(p) 55 Geo. 3, c. 184, sch. tit. Receipt.

(9) Or the receipt may be upon a paper annexed, if there be not room left on the instrument itself; Orme v. Young, 4 Camp. 336.

defence to such action (r). But this proposition requires much explanation.

Where the accord is to do a thing in satisfaction at a future day, and the act is accordingly done and accepted at that time, and is in law a sufficient satisfaction, no doubt the original demand will not furnish a right to sue thereon after the day on which the satisfaction was rendered, although at the time of the accord the satisfaction was executory (s). In this instance there is accord with satisfaction, and the claim is satisfied and extinguished.

If the accord or agreement that satisfaction should be rendered by the defendant, or a third person, at a future day, be not founded on a new consideration, and be not so far binding on the debtor as to afford a fresh right of action to the creditor for its non-performance, an action lies on the original demand, even before the time prescribed for rendering satisfaction. Many of the old cases upon the subject of accord without satisfaction were expressly decided on this ground (t).

But in Com. Dig. Accord, B. 4 (u), it is laid down that "an

(r) Bac. Ab. Accord, A.; Com. Dig. Accord, B. 4; Allen v. Harris, 1 Ld. Raym. 122; Lutw. 1538, S. C.; Lynn v. Bruce, 2 Hen. Bla. 317; Drake v. Mitchell, 3 East, 251; Collingbourne v. Mantell, 5 M. & W. 289; 7 Dowl. 518; Reeves v. Heurne, 1 M. & W. 323; and see particularly per Tindal, C. J., in Bayley v. Homan,

Scott, 94, 103, 104; 3 Bing. N. C. 915, S. C.; Edwards v. Chapman, 1 M. & W. 231. In James v. David, 5 T. R. 141, this general rule was admitted; and it was decided that a plea in trespass, that the plaintiff and defendant had agreed to settle all matters in dispute, and to bind themselves in a penalty not to sue each other, is a bad plea. So an agreement to give a mortgage in satisfaction of a simple contract debt is no answer to an action for such debt; Allies v. Probyn, 2 C., M. & R. 408; 4 Dowl. 158; 1 Gale, 255.

(s) 1 Rol. Ab. Accord, 129, pl. 14; Com. Dig. Accord, B. 4.

(t) Case v. Barber, T. Raym. 450; Sir T. Jones, 158, S. C.; 1 Rol. Ab. Accord, pl. 129, pl. 12; Wickham v. Taylor, Sir T. Jones, R. 168; see

Peytoe's case, 9 Co. 79 b; Brown v. Wade, 2 Keble, 851. In Case v. Barber, one ground for the decision in the plaintiff's favour was that the satisfaction was to be rendered in part by a third person, who was a party to the accord; but the plea did not show he had promised in writing to do the act so as to have become liable to the plaintiff.

(u) Cited by Parke, J., in Good v. Cheeseman, 2 B. & Ad. 335; and per cur. Cartwright v. Cooke, 3 B. & Ád. 702; and per Park, J., in Rippinghall v. Lloyd, 5 B. & Ad. 750; and see Alchin v. Hopkins, 1 Bing. N. C. 102. See the observations of Grose, J., in James v. David, 5 T. R. 143; and of Eyre, C. J., in Lynn v. Bruce, 2 H. Bla. 318. It was there held, that the creditor could not sue on a promise by a debtor to pay part of a debt in satisfaction of the whole; for there was no mutuality. And his lordship stated that an accord executory is no bar, because no remedy lies for it for the plaintiff. A right of entry acquired by an omission to repair after three months' notice is suspended, but not waived, by an agreement to allow the

accord with mutual promises to perform, is good, though the thing be not performed at the time of action; for the party has a remedy to compel the performance. But the remedy ought to be such that the party might have taken it upon the mutual promise at the time of the agreement." And before breach, there is no doubt that a substituted executory agreement is a good defence, and if not pleaded by way of accord and satisfaction, performance of it need not be shown (x). And an agreement for a composition with creditors is an answer to an action by a creditor who has come into it, on the ground that it operates as a new agreement, substituted by consent, and on good consideration, in the stead of the original one, and not as an accord and satisfaction (y). But it should seem that after breach, as of a covenant to repair, a plea of accord executory, but not satisfied, made upon mutual promises, is bad (z).

So a new agreement to render satisfaction, founded on a good consideration and mutually binding, by which a doubtful cause of action for unliquidated damages is not perpetually barred, but suspended for a fixed period, that is, until the claimant has done a particular act, will form a defence to an action brought on the original cause of action before the prescribed period. Thus, in Stracey v. The Bank of England (a), it appeared that certain stock of the plaintiffs was transferred under a forged power of attorney; the Bank of England offered to replace the stock, if the plaintiff would first prove the amount under a commission of bankruptcy issued against a firm in which the forger of the power had been a partner. After this offer the plaintiff's received a dividend, and engaged to tender a proof of their demand under a commission of bankruptcy; it was held, that they could not sue the bank in respect of the stock, till they had fulfilled their

tenant further time to repair; Doe v. Brindley, 1 Nev. & M. 1; 4 B. & Ad. 84, S. C.

(r) Taylor v. Hillary, 1 C., M. & R. 743; Pearson v. Pearson, 5 B. & Ad. 864.

(y) Good v. Cheeseman, 2 B. & Ad. 335; Alchin v. Hopkins, 1 Bing. N. C. 102; and see per Tindal, C. J., observing upon Good v. Cheeseman, in Bayley v. Homan, 5 Scott, 104.

(z) Bayley v. Homan, 5 Scott, 94, 103; 3 Bing. N. C. 915, S. C.; and per Tindal, C. J. there observing on

Good v. Cheeseman and Case v. Barber. The lapse of twenty years from the time of making a contract, to be performed in futuro, is not of itself evidence of a new contract, averred to have been performed, and pleaded as an accord and satisfaction of the original contract; Siboni v. Kirkman, 1 M. & W. 418.

(a) 4 M. & P. 639; 6 Bing. 754, S. C., observed on in Allies v. Probyn, 2 C., M. & R. 408; 4 Dowl. 153; 1 Gale, 255.

engagement, to tender the proof under the commission of bankruptcy.

In an action upon the case for wrongfully causing a capias ad satisfaciendum to be indorsed, to levy more money than was claimable thereon, it appeared that the defendant was discharged out of custody upon the writ by virtue of a judge's order, upon certain terms, constituting a new and mutual agreement between the parties, and embodied in the order. And Parke, J., said— "In considering the terms of this order, I am inclined to think that there is evidence of a mutual agreement between the parties, upon good consideration, to forego the action for charging the plaintiff in execution for too much; and an agreement giving the plaintiff a remedy for the breach of it, or an accord executed, where there was no remedy by action upon the accord itself, is a bar to an action for unliquidated damages (b)."

The assignment by deed of property, for the purpose of securing debts due, and to be due, with a power of sale on giving six months' notice, is only to be viewed as a collateral security, and does not suspend the remedy by action for the debts against the debtor, although no such notice has been given; there being no express stipulation in the deed that the remedy by action should not be adopted (c).

The effect of taking a bill of exchange or promissory note, on account of a debt, will be considered hereafter. It may however be observed, that a bill of exchange or promissory note, if taken in satisfaction of a debt, may be an absolute bar to an action. for such debt, even though it be dishonoured; but it is otherwise where the bill or note is taken merely on account (d).

Where a bond or other specialty has been given on account of a simple contract debt, this will be a bar to an action for such debt (e).

It is necessary that the satisfaction should be in legal contemplation advantageous to the party agreeing to receive it; it is inoperative if it appear that it could not possibly afford him an equivalent benefit or compensation (ƒ).

(b) Wentworth v. Bullen, 9 B. & C. 840, 850. Mr. Justice Park referred to Case v. Barber, ante, 761, note (t); and Crofts v. Harris, Carth. 187; but those cases do not appear to be exactly in point. See Reniger v. Fogassa, Plowd. 5, 11 b.

(c) Emes v. Widdowson, 4 C. & P.

151.

(d) Sard v. Rhodes, 1 M. & W. 153; 4 Dowl. P. C. 743, S. C. (e) Post, 783; Weston v. Foster, 2 Bing. N. C. 692.

(f) Bac. Ab., Accord, A.; Com. Dig. Accord, B. 1.

On this ground, the receipt of a part of a debt, or liquidated damages, as a discharge of the whole, is in general no satisfaction of the remainder, although the receipt express that the sum is received as a composition; except in the instances to which we have already adverted (g). But where a chattel is taken in satisfaction, it need not be averred that it was of equal value with the debt, for the party receiving it is always taken to be the best judge of that in matters of uncertain value (h).

In an action for taking cattle, it is no plea that it was agreed that the plaintiff should have his cattle again, and that they were returned; for this is no satisfaction of the injury sustained from the detention (i). Nor is an agreement not under seal, that the parties should be quit of actions against each other, a sufficient satisfaction (j).

It is no plea to debt on bond given to a firm, that the claim was assigned or transferred to the account of a new firm, on the obligees dissolving partnership, and some of them quitting the firm (k).

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 the account of R. C.; and S., in pursuance of such agreement, delivered to R. C. an account, in which the latter was charged with the debt due from J. C. to S.; it was held, that J. C. was not thereby discharged, there being no satisfaction to S. (1).

In debt upon bond, the defendant pleaded that he released to the plaintiff all his equity of redemption of and in certain premises, in satisfaction of all bonds from the defendant to the plaintiff. On demurrer, "the court were clearly of opinion, 1st, that a release of an equity of redemption was nothing at all in the eye

(g) Ante, 747, 748; Down v. Hatcher, 2 P. & Dav. 292; and a plea of payment of a smaller sum of money in bar of a claim for a larger sum is not cured by verdict; id.; Wright v. Acres, 1 N. & P. 761; 6 Ad. & E. 726, S. C. And see Denton v. Richmond, 1 C. & M. 734.

(h) Andrew v. Boughey, Dyer, 72 a. per Denman, C. J., Thompson v. Percival, 5 B. & Ad. 932; 3 N. & M. 167, S. C.

(i) Peytoe's Case, 9 Rep. 78 a; 1 Rol. Abr. 128, l. 35.

(j) James v. David, 5 T. R. 141;

Rol. Ab., Accord; Davis v. Ockham, Sty. 245; Dighton v. Whiting, Lutw. 57; Com. Dig., Accord, (B 1.) But an agreement by defendant to destroy certain evidences or documents may be a sufficient accord and satisfaction as to a tort committed; Lane v. Applegate, 1 Stark. R. 97.

(k) Parker v. Wise, 6 M. & Sel. 239. See as to the extinguishment of a debt by the substitution of a new debtor by consent of all parties, ante, 613, 614.

(1) Curon v. Chadley, 3 B. & C. 591; 5 D. & R. 417, S. C.