nant, the satisfaction must have been made after breach; for if it were before breach, it is not good.1 And where a duty in certain accrues by deed, tempore confectionis scripti, as, by an obligation to pay a certain sum of money, this certain duty having its origin and essence in the deed alone, the obligation, it seems, is not discharged but by deed; and therefore a plea of accord and satisfaction of the bond by matter en pais would be bad; but if it were a bond with condition, and the plea in such a case had been in discharge of the sum mentioned in the condition of the bond, it would be good.2

§ 28 a. When effect of plea question of law. The facts, in respect to the arrangement or accord between the parties being ascertained, their effect is purely a question of law, and is not to be submitted to the jury. Thus, where A and B having mutual causes of action in tort, and meeting for the purpose of adjusting the demands of B only, it was insisted by the latter, that A should pay him therefor a sum of money and give him a receipt in full of all demands, which was accordingly done, but nothing was said about A's cause of action; it was held that this was a good accord and satisfaction of the demand of A against B.3

§ 29. Accord and satisfaction may be put in evidence. In the United States, an accord with satisfaction may be given in evidence under the general issue in assumpsit, and in actions on the case; but in debt, covenant, and trespass, it must be specially pleaded. In England, since the late Rules, it must be specially pleaded in all cases.4

§ 30. Parties to the accord. As to the parties to an accord;

limited, in Sibree v. Tripp, 15 M. & W. 23, to the naked case of the acceptance of a less sum in satisfaction of a greater. Thomas v. Heathorn, 2 B. & C. 477; Pinnel's Case, 5 Co. 117; Smith v. Brown, 3 Hawks, 580; Wilkinson v. Byers, 1 Ad. & El. 113, per Parke, J.; Watkinson v. Inglesby, 5 Johns. 391, 392; Seymour v. Minturn, 17 Johns. 169; Bateman v. Daniels, 4 Blackf. 71. But payment and accep tance of the principal sum in full, without interest, is sufficient. Johnston v. Brannan, 5 Johns. 271. See Donohue v. Woodbury, 6 Cush. 148.

Kaye v. Waghorne, 1 Taunt. 428; Snow v. Franklin, Lutw. 108; Smith v. Brown, 3 Hawks, 580; Harper v. Hampton, 1 H. & J. 675; Batchelder v. Sturgis, 3 Cush. 203.

2 Blake's Case, 6 Co. 43; Neal v. Sheffield, Yelv. 192; s. c. Cro. Jac. 254; Story's Plead. 157, n.; Preston v. Christmas, 2 Wills. 86; Strang v. Holmes, 7 Cow. 224. 8 Vedder v. Vedder, 1 Den. 257.

Chitty on Pl. 418, 426, 429, 432, 441; Bird v. Randall, 3 Burr. 1353; Chitty's Prec. 477, 478; Weston v. Foster, 2 Bing. N. C. 693; 1 Stephen's Nisi Prius, 391. Where the plaintiff, in an action of slander, agreed to waive the action, in consideration that the defendant would destroy certain writings relative to the charge, and he accordingly destroyed them; this was held admissible, under the general issue, as an evidence of accord and satisfaction. Lane v. Applegate, 1 Stark. 97.

proof of an accord and satisfaction made by one of several joint obligors, or joint trespassers, is good and available to all.1 So, if it is made to one of several plaintiffs, though no authority appear from the others to make the agreement.2 If the action is for an act done by the defendant as the servant of another, an accord and satisfaction by the latter is a good defence. And as to the subject-matter, it is not necessary that it proceed directly from the defendant; the obligation or security of a third person who is sui juris is sufficient, if it be accepted in satisfaction of the whole amount, and not of a part only,5 though it may be of a less amount than was actually due. (a) It is well settled that an accord alone, not executed, is no bar to an action for a pre-existing demand. (b) And the rule is equally clear that the person who is to be discharged is bound to do the act which is to discharge him, and not the other party.7

§ 31. Accord with tender of satisfaction. Whether an accord with a tender of satisfaction is sufficient without acceptance is a point upon which the authorities are not agreed. It is, however, perfectly clear, that a mere agreement to accept a less sum in composition of a debt is not binding, and cannot be set up in bar of an action upon the original contract. Thus, where an agreement was made between a debtor and his creditors, that the latter should accept five shillings and sixpence in the pound in full satisfaction of their respective debts, which sum was tendered and refused, it was held, that this constituted no bar to an action for

1 Strang v. Holmes, 7 Cow. 224; Ruble v. Turner, 2 Hen. & M. 38. If several tortfeasors are jointly sued, and a sum of money is accepted from one of them, and the action is thereupon dropped, this may be shown as a full satisfaction in bar of a subsequent action against the others. Dufresne v. Hutchinson, 3 Taunt. 117.

2 Wallace v. Kelsall, 7 M. & W. 264. But if the payment be to one of the plaintiffs for his part only of the damages, it is no bar to the action. Clark v. Dinsmore,

5 N. H. 136.

8 Thurman v. Wild, 11 Ad. & El. 453.

Kearslake v. Morgan, 5 T. R. 513; Booth v. Smith, 3 Wend. 66; Wentworth v. Wentworth, 5 N. H. 410; Bullen v. M'Gillicuddy, 2 Dana, 90.

5 Walker v. Seaborne, 1 Taunt. 526; Gabriel v. Dresser, 29 Eng. Law & Eq. 266. 6 Steinman v. Magnus, 11 East, 390; Lewis v. Jones, 4 B. & C. 506, 513; Reay v. White, 1 C. & M. 748; Cranley v. Hillary, 2 M. & S. 120.

1 Cranley v. Hillary, 2 M. & S. 120, 122.

8 Cumber v. Wane, 1 Stra. 425; 1 Smith's Leading Cases, p. 146 (Am. ed.); 43 Law Lib. 249-263.

(a) This is true also of the check of a third person. Guild v. Butler, 127 Mass. 386; Kellogg v. Richards, 14 Wend. (N. Y.) 116.

(b) If the plaintiff, in putting in his own case, is obliged to prove an accord and

partial satisfaction, he should put in some evidence that the accord has not been fully satisfied, in order to avoid its operation as a bar to his suit. Browning v. Crouse, 43 Mich. 489.

the whole debt, for it was without consideration; though it was admitted that had the debtor assigned his effects to a trustee, under an agreement for this purpose, it would have constituted a good consideration, and would have been valid. So, where the agreement was to receive part of the debt in money and the residue in specific articles, no tender of the latter being averred, though it was alleged that the defendant was always ready to perform, the plea was held bad, the accord being only executory.2 But whether, where the agreement is for the performance of some collateral act, and is upon sufficient consideration, a tender of performance is equivalent to a satisfaction, seems still to be an open question; though the weight of authority is in the affirmative. In one case, which was very fully considered, it was laid down as a rule warranted by the authorities, that a contract or agreement which will afford a complete recompense to a party for an original demand ought to be received, as a substitute and satisfaction for such demand, and is sufficient evidence to support a plea of accord and satisfaction.3 Therefore, where the holder of a promissory note agreed in writing with the indorser, to receive payment in coals at a stipulated price, and they were tendered accordingly but refused, the agreement and tender were held to be a sufficient accord and satisfaction to bar an action on the note. So, where a man's creditors agreed to take a composition on their respective debts, to be secured partly by the acceptances of a third person and partly by his own notes, and to execute a composition-deed containing a clause of release; it was held by Lord Ellenborough, that an action for the original debt could not be maintained by a creditor, who had promised to come in under the agreement, to whom the acceptances and notes were regularly tendered, and who refused to execute the composition-deed after it had been executed

1 Heathcote v. Crookshanks, 2 T. R. 24. To the same effect are Tassall v. Shane, Cro. El. 193; Balston v. Baxter, Id. 304; Clark v. Dinsmore, 5 N. H. 136; Lynn v. Bruce, 2 H. Bl. 317.

2 Rayne v. Orton, Cro. El. 305; James v. David, 5 T. R. 141.

8 Coit v. Houston, 3 Johns. Cas. 249, per Thompson, J.; Case v. Barber, T. Raym. 450; 1 Com. Dig. Accord, B. 4. The latter case of Allen v. Harris, 1 Ld. Raym. 122, that an accord upon mutual promises is not binding, because no action lies upon mutual promises, admits the general doctrine of the text, though it differs in its application. The same is true of Preston v. Christmas, 2 Wils. 86. But the doctrine in the text is fully supported by the decision in Cartwright v. Cooke, 3 B. & Ad. 701. See also Good v. Cheeseman, 2 B. & Ad. 328, 335. Sed vid. Bayley v. Homan, 3 Bing. N. C. 915, per Tindal, C. J.

4 Coit v. Houston, 3 Johns. Cas. 243. The same principle seems to have been conceded by Ashhurst and Grose, JJ., in James v. David, 5 T. R. 141.

by all the other creditors; the learned judge remarking, that a party should not be permitted to say there is no satisfaction to whom satisfaction has been tendered, according to the terms of the accord. But it has since been held in this country, that a readiness to perform a collateral agreement is not to be taken for a performance, or as the satisfaction required by law.2 (a)

§ 32. Payment and acceptance. If the defendant pleads payment and acceptance of a sum of money in satisfaction, and the plaintiff replies, traversing the acceptance in satisfaction, this puts both facts in issue; and the defendant must therefore prove the payment as well as the acceptance in satisfaction.3

§ 33. Proof by lapse of time. The plea of accord and satisfaction may often be proved by the lapse of time and acquiescence of the parties. Thus, it has been held, in an action upon a covenant against incumbrances, that the lapse of twenty years after damages sustained by the breach, unless rebutted by other evidence, was sufficient proof of the plea.1

1 Bradley v. Gregory, 2 Campb. 383. And see, accordingly, Evans v. Powis, 11 Jur. 1043.

2 Russell v. Lytle, 6 Wend. 390. But in this case the decision of the same court in Coit v. Houston, many years before, was not cited or adverted to, and the question was decided upon the earliest authorities. Yet, in several of these, the reason why an accord without satisfaction is not binding is stated to be, that the plaintiff has no remedy upon the accord; thus tacitly seeming to admit that, where there is such remedy, the accord, with a tender of satisfaction, is sufficient. 1 Roll. Abr. tit. Accord, pl. 11-13; Allen v. Harris, 1 Ld. Raym. 122; Brook. Abr. tit. Accord, &c., pl. 6; 16 Ed. IV. 8, pl. 6. So in Lynn v. Bruce, 2 H. Bl. 317. See, however, Hawley v. Foote, 19 Wend. 516, where an agreement to accept a collateral thing in satisfaction, with a tender and refusal, was held not a good bar.

8 Ridley v. Tindall, 7 Ad. & El. 134.

(a) The course of decision seems to tend towards holding part performance of an accord, with readiness to complete the performance or a tender of full performance, not a valid accord and satisfaction. The court of appeals in New York, in Kromer v. Heim, 75 N. Y. 574, cite the New York cases referred to by the author in note (2) and the later case of Tilton v. Alcott, 16 Barb. 598, with approval, and sustain the principle. So in Hearn v. Kiehl, 38 Pa. St. 147; White v. Gray, 68 Me. 579; Young v. Jones, 64 Me. 563; Clifton v.

Jenkins v. Hopkins, 9 Pick. 543.

Litchfield, 106 Mass. 34; Pettis v. Ray, 12 R. I. 344. The case of Goodrich v. Stanley, 24 Conn. 613, supports the view suggested by Mr. Greenleaf in n. 2, that if the accord is of such a nature as to admit a suit upon it, i. e. if there is a promise founded on a good consideration, then the accord itself, averred with an allegation of readiness to perform, will be a good plea of accord and satisfaction. For a full discussion of this point see Babcock v. Hawkins, 23 Vt. 561.

ACCOUNT.

§ 34. Action not now usual. The remedy at common law, by the action of account, has fallen into disuse in most of the United States; suits by bill in chancery or by action of assumpsit being resorted to in its stead. It is, however, a legal remedy where not abolished by statute. (a)

§ 35. When it lies. This action lies at common law between merchants, naming them such, between whom there was privity; also against a guardian in socage by the heir; and against bailiffs and receivers.1 (b) And by statutes it lies between joint-tenants and tenants in common and their personal representatives, and by and against the executors and administrators of those who were liable to this action.2 But it does not lie against an infant, nor against a wrong-doer, or any other person where no privity exists.3

§ 36. Against receiver.

1 Com. Dig. Accompt, A, B.

Where the action is against one as re

2 13 Edw. I. c. 23; 25 Edw. III. c. 5; 31 Edw. III. c. 11; 4 & 5 Anne, c. 16; Sturton v. Richardson, 13 M. & W. 17.

3 Co. Lit. 172 a; Harker v. Whitaker, 5 Watts, 474.

(a) The basis of the equitable jurisdiction in a bill for accounting may be either that the parties are so related that a suit at law will not give an adequate remedy, as when they are principal and agent, or partners. Harvey v. Varney, 98 Mass. 118; Dunham v. Presby, 120 Mass. 285. Or that the accounts are so complicated that a jury could not examine them with accuracy. Farmers', &c. Bank v. Polk, 1 Del. Ch. 167; Carter v. Bailey, 64 Me. 458.

(b) "It has been settled by repeated decisions in this State, that the action of account is the proper remedy for the adjustment of controversies growing out of the common mode of leasing farms, where the products and profits are to be divided between landlord and tenant. And a disposition has been shown to require everything growing out of such a contract, affecting the proper settlement and division, to be brought into such accounting. It was decided in Cilley, Adm'r v.

Tenny, 31 Vt. 401, that the neglect of the tenant to properly cultivate the crops, whereby they were injured, and thus the joint profits in the products of the farm were diminished, was proper to be adjusted in an action of account. But breaches of contract on either part, whereby the mak ing of profits has been prevented merely, we think need not necessarily be brought into the account, and may be sued for independently." Poland, C. J. La Point v. Scott, 36 Vt. 609.

The action of account does not lie in favor of one partner against another who has received nothing and has no account to render. Spear v. Newell, 2 Paine, C. C. 267. At common law the action of account would only lie between two merchants. Appleby v. Brown, 24 N. Y. 143. It will not lie at common law upon a mere equitable title of tenancy in common or joint tenancy, the object being to recover rents and profits. Carney v. Irving, 31 Vt. 606.