1850. CALLANDER บ. HOWARD. averred." Here, the plea sufficiently shews that there was a legal demand. Whether the accounting operates as a payment, or as a new promise, by which the old one is extinguished, may admit of doubt: some learned judges have inclined to think it operated as payment; others have treated it as an extinguishment, by giving a new cause of action. Thus, in Ashby v. James (a), Alderson, B., says: "The courts have never laid it down that an actual statement of a mutual account will not take the case out of the statute of limitations. They have indeed determined, that a mere parol statement of, and promise to pay, an existing debt, will not have that effect, because, to hold otherwise, would be to repeal the statute. The truth is, that the going through an account, with items on both sides, and striking a balance, converts the set-off into payments." But Rolfe, B., says: "An actual settlement of accounts is not an ' acknowledgment or promise by words only.' It is a transaction between the parties, out of which a new consideration arises for a promise to pay the balance." This is in accordance with what is laid down in Com. Dig. Action upon the Case upon Assumpsit (G.), viz. that, "if A. be indebted to B., and afterwards they come to an account for all matters between them, this is. a discharge of the debt." In Scholey v. Walton (b), Parke, B., takes the same view that Alderson, B., took in Ashby v. James. Tindal, C. J., in Clark v. Alexander (c), and Lord Denman, in Worthington v. Grimsditch (d), take a different view of the matter. Again, in Pott v. Cleg (e), Parke, B., says: "In Ashby v. James, the parties met, and stated accounts, and struck a balance; that was equivalent to a payment by one, and a repayment by the other." In Com. Dig. Accord (B. 4.), it is laid down, that "an accord, with mutual promises (a) 11 M. & W. 542. (b) 12 M. & W. 510. (d) 7 Q. B. 479. 484. to perform, is good, though the thing be not performed Cocking v. Ward (d), lays down the (a) 1 Exch. 601. (c) 1 C. M. & R. 108. 1850. CALLANDER ข. HOWARD. 1850. As to the form of the plea, the defendant was not bound to shew the precise nature of the claims and CALLANDER demands which he had against the plaintiff: the admission of them in the account shews that they were legal claims and demands. And it is sufficiently shewn by the plea that the debt was extinguished. บ. HOWARD. Channell, Serjt., in reply. In Ashby v. James, the question turned, not upon the form of pleading, but was whether the plea disclosed a transaction which amounted to payment, so as to take the case out of the statute of limitations. Assuming the alleged claims and demands to have been debts, either the facts amounted to payment, or to set-off, or they shewed an agreement that a given amount of the claims on the one side should be set against an equal amount on the other side, and that the plaintiff's debt should be considered as extinguished pro tanto; in either of which cascs, the plea should have been framed accordingly. Cur. adv. vult. WILDE, C. J., now delivered the judgment of the court: If the plea in this case amounts to an allegation of the allowance of cross-demands upon an account stated, and payment of the balance, there seems to be no doubt but that it sets up substantially a good defence to the action. This appears to have been established, and the reason of the doctrine expounded, at a very early period. Thus, in Co. Litt. 213. a., it is said: "If the obligor or feoffor be bound by condition to pay one hundred marks at a certain day, and at the day the parties do account together, and for that the feoffee or obligee did owe 207. to the obligor or feoffor, that sum is allowed, and the residue of the hundred marks paid, this is a good satisfaction; and yet the 207. was a chose in action, and no payment was made thereof, but by way of retainer or discharge." The authority cited for this passage, is, a case to that effect in the Year Book, 11 Ric. 2. (a), which is stated in Roll. Abr. Condition Book of that reign. The case was this:-"Debt upon obligation, bearing date at C., brought by executors. The defendant says that the obligation is indorsed upon condition, that, if the obligor pay 100 marks at Whitsunday next following after the making &c., at another place to the testator, then &c. And he says, that, at the same feast, and at C., the testator and the defendant accounted together, and, because the testator owed the defendant 201. for another contract, the testator allowed the 20% in payment of the 100 marks, and paid him the 100 marks on the day, &c. Judgment, &c. Wadham (Serjeant). The condition is—if he payand he alleges no payment, and so he has (not) performed the condition. Et non allocatur. For, it was said that it was as well as if he had paid the testator, and the testator had repaid him. Wadham. The payment was to have been made at another place, and not at C. Et non allocatur. Fitzherbert refers to a case in 37 H. 6., which is as follows: -"P. 37 H. 6. fo. 26, pl. 16. In a writ of debt upon an obligation, the plaintiff counts by Laicon, &c. Boeff (Serjeant): Actio non, because the obligation is indorsed with this condition, that, if the defendant grant to the plaintiff citra festum Pentecostes next coming, the rent and farm of such a mill, to have and perceive to him until he be satisfied and paid 67., the obligation shall then lose its force; and, after the obligation, and before the feast of Pentecost, the defendant leased to the plaintiff the said mill for term of years, rendering &c., and that he (the plaintiff) retained in his hand so much of the said rent as amounted to 67.: verification. Laicon. This plea is bad; for, the condition is, if he grant the farm and rent of such a mill to the plaintiff; and he had shewn by his plea that he has no rent or farm issuing out of the said mill at the time; for, the mill at that time was in his own hands; and, although he leased the mill afterwards, that is not of purpose to fulfil (implier) the condition, because the condition is, if he grant the rent and farm of his mill, by which it is to be understood that the rent and farm was in esse at the time of the obligation and condition; and, if not, the condition is void, and that confessed by him; and also the condition is, that he grant (to the plaintiff) to have and perceive, and he has shewn that he cannot have and perceive from him, but only retain. Whereupon, as to the first point, Nedham (J.) held that the plea was good, as seemed to him; for, although the rent and farm were not in esse at the time of the obligation and condition, still they were in esse before the feast of Pentecost, and then that was sufficient, as it seems. So, if 1850. CALLANDER V. HOWARD. 1850. v. HOWARD. (E.), pl. 5., and translated in Vin. Abr. Condition (E. d.), pl. 5., where the reason for the decision is said to be, CALLANDER that "this is all one as if the obligor had paid to the obligee, and he had repaid him. This is a payment by way of retainer." (a) This same case from the Year Book was also cited by the court in Hayford v. Andrews(b), and said to be good law; for, that the agreement to retain is as a payment, and thereby the obligation is discharged. And the same view was taken in the modern cases cited at the bar, viz. by Alderson, B., in Ashby v. James (c), by Parke, B., in Scholey v. Walton (d), and by Tindal, C. J., in delivering the judgment of this court in Clark v. Alexander. (e) But, although these authorities demonstrate that a settlement of an account, in which one item is agreed to be set off against another, amounts to a payment of the sums thus set off, yet there are other authorities which shew that this adjustment of the account, together with the implied or express promise to pay the balance, cannot be regarded as an extinguishment of the original debt; and, consequently, that it cannot be set up, by a plea in assumpsit, as affording, per se, a defence to an action, but must be treated in pleading as a payment. A contrary view, indeed, was taken in the the mill had been leased for a Quasi diceret sic. Laicon denied, and said he thought not: so here. But he said the matter was good. But, as to the second point, he (Nedham Just. C. P.) held the condition to be already performed well enough; for, it is common for one to have the rent and farm by way of receipt by another hand. Et adjour natur. (a) The words in italics are Lord Rolle's. (b) Cro. Eliz, 697. |