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the contract has a “perfect right” to the debt. (“ Byles on Bills,” Am. edition, 182, note by the distinguished American editor.) This is true; but it makes in favour of, instead of against, the validity of the new contract; it is a reason why the creditor can give the money due, but by no means why he cannot. One has a “perfect right” to money in his possession, but that was never heard of as an objection to his using it. A lawful way to use money is to give it in consideration for a contemporaneous promise. The relinquishment of a debt to which the creditor has a “perfect right,” is equivalent to an advance of an equal amount of money. Why does not the law treat it, then, as a consideration for a present promise? It is said, in answer, that the creditor cannot be bound by a naked agreement to release a debt. But it is a mistake to consider the agreement naked, and here lies the fallacy of the argument. It has a consideration; to wit, the promise of the debtor to give something else. Such a promise is deemed sufficient to sustain an agreement to pay money outright; and, if so, it must, of necessity, be sufficient to sustain a promise to release a debt; for however “perfect” may be the “right” to the debt, possession is still necessary to make the ownership complete.

Thus it appears that substituted and original contracts stand in reason upon the same footing. How then is the distinction which the law makes between them to be accounted for? It probably arose from the following considerations.

Should the Courts examine into the consideration of contracts, they would be constrained by the principles of equity which guide their action, to require that the consideration on one side should be equal to that on the other. In order to enforce such a rule, it would be necessary to put a specific valuation upon each article that could become the subjectmatter of a contract. But as the value of goods fluctuates according to the state of the market, this could not be done. The Courts, therefore, would be obliged either to pronounce all contracts void for want of equality of consideration, or to assume to be the agent of both parties to re-adjust the terms of the contracts. It is to avoid either alternative that they refuse to inquire into the sufficiency of the consideration.

There is one exception to the refusal to inquire into the adequacy of the consideration; to wit, in contracts for the exchange of money. Here the value of the articles to be exchanged is fixed by law, and the Courts cannot refuse, but are bound to take judicial notice of the fact. They accordingly hold that, as money is the legal standard of value, contracts to exchange different amounts of money are not binding, because there is no consideration for the balance of, or difference between, the two amounts.

An agreement to give a different amount of money from that due, or even the same amount upon a different time (time being an additional legal consideration without a return) is not binding, because it lacks the equality of consideration which the law requires in exchanges of money; and without a legal sanction to give the agreement efficacy, it amounts to nothing; hence it cannot be a substitute for, or satisfaction of, the debt. As agreements of this kind make up the bulk of substituted contracts, which are, for the most part, agreements either for a reduction in the amount of the debt, or for an extension of credit, it was inferred, though erroneously, that all substituted contracts are likewise not binding. It was not observed that where something other than money is offered in consideration for the money which is due, the transaction stands upon the same footing with other bargains; in such case, as in ordinary barter, the debtor agrees to give one thing in return for another. “And where," said Baron Parke, in Cooper v. Parker (15 C. B., 822), “the matter pleaded in satisfaction of a liquidated demand is of uncertain value, the Court will not set a value upon it, or inquire into the sufficiency of the consideration.” In consequence of this oversight in not discriminating between the two classes of contract,—that is, between contracts for the exchange of money, and contracts not for the exchange of money,—the ambiguous maxim, that an




accord without satisfaction is no bar, was devised in order to prohibit all substituted contracts. That maxim says, that an agreement is not satisfaction of a debt; it means, that a void agreement, which is not an agreement, is not satisfaction of a debt. The question always is, whether the agreement is binding; that is, whether it amounts to a legal agreement. It is only when it wants some essential of a valid agreement, like e. g. a consideration, that it is said not to be satisfaction of a debt. Where there is no doubt about the consideration, as in case of a fresh consideration, the agreement is invariably held to be satisfaction, if such was the intention of the parties.

It is easy to see how the maxim, that an accord without satisfaction is no bar, originated. It is an undue extension of the familiar rule, that an agreement to do what the party is already bound to do is not binding. Thus, in trespass for taking the plaintiff's cattle, it was held not to be a good plea to say, that there was an accord that the plaintiff should have his cattle again; that not being satisfaction, unless accompanied by delivery of the cattle. (1 Bac. Abr. 22.) Accordingly, where the new agreement is merely to do what the party is already bound to do, it is strictly true that the additional agreement is not satisfaction unless executed. The new agreement is not binding because it wants a consideration, and, therefore, having no legal existence, it could not be satisfaction of the demand.

It is contended that the law must protect the creditor's rights, which would be impaired if the debtor could escape from the terms of one contract by making another. But the answer to this is, that the new contract, like any ordinary contract, requires the consent of both parties; and if the creditor cannot take care of his interest in making it, the reason must be that he is incapable of making any bargain. The argument proves too much; it would prevent all contracts. Instead of an injury, however, the new contract works a benefit to the creditor, as well as to the debtor. Take, for the sake of illustration, the following case :--A contractor, who is unable



to raise money, is indebted to a person who is about to have a house built. Why should not the creditor be allowed to relinquish his debt, in consideration of his debtor's agreeing to build him a house of which he stands in need? In this way

a the debtor would be enabled to pay his debt, which otherwise he could not do, and a creditor to save himself the expenditure of an equal amount of money. Thus it is often the only, as well as the best mode in which a creditor is able to collect his debts.

It is evident that the maxim is not now looked upon by the Courts with favour. Thus Baron Parke, following Mr. Justice Byles in his Treatise on Bills, p. 153, decided in Foster v. Dawber (6 Exch., 839), that the rule does not apply to commercial paper; which he held to be governed by the law merchant, and to follow, in this respect, the civil law and the continental law of Europe. By this decision, contracts for the exchange of money, which mainly take the form of promissory notes and bills of exchange, and to which alone, as has been shown, the reason of this rule applies, are withdrawn from its application. This decision looks like the precursor of the total overthrow of the maxim; for it is inconceivable that the same Court will continue, for any length of time, to hold an agreement to accept a part of a sum of money in discharge of the whole to be satisfaction, if put in the form of a promissory note or bill of exchange, but not if put in any other form of a contract, even though it be followed by actual payment or execution.



The Constitutional History of England since the Accession of

George the Third, 1760-1860. By Thomas Erskine
May, C.B. In Two Volumes. Vol. II. London, 1863.

А LTHOUGH protests of the strongest nature have been

entered against the introduction of the principle of the division of labour into history, the practice, we fear, bas become so inveterate, and the advantages which attend it, under existing circumstances, are so unquestionable, that it seems best to submit to it with as good a grace as possible. Indeed, considering the fulness of research and minuteness of inquiry which the character of the present age renders necessary in all historical compositions of a more ambitious order, we see no likelihood of any work which shall be the History of England being produced in our day, or even in that of our immediate descendants. Not only with respect to those periods of history of which most has been written does much remain in obscurity-many incidents and circumstances being inadequately known, and the relations of many events to each other imperfectly understood—but much, also, remains to be done with respect to those earlier periods which used scarcely to be considered as coming within the domain of history, while antiquarian research and the science of languages have shed light, obscure but startling, even on confessedly pre-historic times. Bearing, as this latter inquiry does, on the origin and

. migration of races, it is impossible to dismiss it as irrelevant, when we have to deal with the history of a composite people such as that which inhabits these islands; and, at all events, until it has been pursued further than it has hitherto been, it will be impossible to pronounce how much or how little it may affect what is known as the History of England. But even

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