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plaintiff declares, that in consideration he would deliver to the defendant a piece of cloth, he, the defendant, should pay a sum of money for it, an averment of the delivery of the cloth is necessary; but if the plaintiff states an agreement, and then states that in consideration of such agreement, &c. in that case an averment is not necessary.”
Having thus illustrated the nature of conditions precedent, concurrent acts, and mutual promises, it remains only to add, that there are not any technical words by which
of these considerations are constituted. The principal difficulty in the construction of agreements consists in discovering, whether the consideration be a condition precedent, a concurrent act, or a mutual promise. This, however, must be collected from the apparent intention of the parties to the agreement. The intention of the parties is, or is assumed to be, the governing principle of all the determinations. When the nature of the consideration is ascertained, the rules respecting the averments before laid down invariably hold. If the reader wishes to pursue this subject further, he will find the cases relating to it fully collected and commented upon, in Mr. Serjeant Williams's edition of Saunders, vol. i. p. 320. n. 4. vol. ii. p. 352. n. 3. See also Mr. Durnford's note in Willes's Rep. p. 157. and post, tit. Covenant.
IV. Of the Pleadings :
Pleadings in Assumpsit.
2. Of Set-off.
1. Of the General Issue, and the New Rules relative to Pleadings in
1. General Issue.—The general issue in this action is non assumpsit. If by mistake not guilty be pleaded, instead of f Per Grose, J. in Glazebrook v. Wood- in Smith v. Woodhouse, 2 Bos. & Pul.
row,8 T.R. 372. per Sir J. Mansfield, N. R. 240.
non assumpsit, such plea will be bad on demurrers, but aided after verdíct. Formerly, many grounds of defence might have been given in evidence under the general issue non assumpsit, and did not require to be pleaded specially; such as coverture at the time of making the contract, infancy, and many more, for which the reader is referred to former editions of this work. But now by R. G. H. T. 4. W.4. Pleadings I. In all actions of assumpsit, except on bills of exchange, and promissory notes, the plea of non assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law. Ex. gr. In an action on a warranty, the plea will operate as a denial of the fact of the warranty having been given upon the alleged consideration, but not of the breach; and, in an action on a policy of insurance, of the subscription, to the alleged policy by the defendant, but not of the interest, of the commencement of the risk, of the loss, or of the alleged compliance with warranties. In actions against carriers and other bailees, for not delivering or not keeping goods, or not returning them on request, and in actions against agents for not accounting, the
plea will operate as a denial of any express contract to the effect alleged in the declaration, and of such bailment or employment as would raise a promise in law to the effect alleged, but not of the breach. In an action of indebitatus assumpsit for goods sold and delivered, the plea of non assumpsit will operate as a denial of the sale and delivery in point of fact; in the like action for money had and received, it will operate as a denial both of the receipt of the money, and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. 2. In all actions upon bills of exchange and promissory notes, the plea of non assumpsit shall be inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact; ex. gr. the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour of the bill or note. 3. In every species of assumpsit, all matters of confession and avoidance, including not only those by way of discharge, but those which shew the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded ; ex. gr. infancy, coverture, release, payment, performance, illegality of consideration either by statute or common law; drawing, indorsing, accepting, &c. bills or notes by way of accommodation, set-off, mutual credit, unseaworthiness, misrepresentation, concealment, deviation, and various other defences must be pleaded. A defence on the ground of want of consideration for an agreement must be specially pleaded, and is not admissible in evidence under the general issue, non assumpsit i So in assumpsit for the price of a copyright bargained and sold, a defence on the ground that the copyright was not assigned in writing must be specially pleaded k. So illegality of consideration, whether at common law, or by statute; and not only where the express contract on which plaintiff sues is illegal, but also where illegal services having been performed, no contract to pay for them can be implied.
g Marsham v. Gilbs, 2 Str. 1022. and h Elrington v. Doshant, 1 Lev. 142.
Ca. Teinp Hard. 173. Adjudged on Corbyn v. Brown, Cro. Eliz. 470. special demurrer.
2. Accord and Satisfaction.
Accord and Satisfaction.—Accord with satisfaction is a good plea in bar to this action, because damages only are recoverable; and accord with satisfaction to one defendant is a bar to all P. An accord to make a good plea must be perfect, complete, and executed: for an accord executory is only substituting one cause of action for another, which might go on to any extent. Hence a plea of accord to do several things", with an averment of performance of some only, and of an offer to perform the rest, is bad. So where to an assumpsit on a promissory note, the defendant pleaded an agreements between the defendant and plaintiff, with other creditors of the defendant, that they would accept a composition in satisfaction of their respective debts, to be paid in a reasonable time, and then averred a tender and refusal on the part of the plaintiff of the composition : on demurrer, the plea was holden bad. But where a debtor being unable to meet the demands of his creditors, they signed an agreement (which was assented to by the debtor) to accept payment by his covenanting to pay a third of his annual income to a trustee of their
nomination, and give a warrant of attorney as a collateral security: it appeared that the debtor was willing to perform his part, but the creditors did not appoint a trustee; it was holdent, that the agreement, though not properly an accord and satisfaction, was a good defence to an action by one of the creditors for his demand; inasmuch as it was a consent by the parties signing the agreement to forbear enforcing their demands, in consideration of their own mutual engagement of forbearance; and that each creditor was bound, in consequence of the agreement of the rest. Acceptance of a security for a lesser sum cannot be pleaded in satisfaction of a similar security for a greater. To an action of indebitatus assumpsit for 151.4 the defendant pleaded, that he gave the plaintiff a promissory note for 51. in satisfaction, and that the plaintiff received it in satisfaction; the plaintiff put in an immaterial replication, to which the defendant demurred: after judgment for the plaintiff in C. B. it was objected on error in B. R. that the plea was ill, it appearing that the note for 5l. could not be a satisfaction for 15l.; and per Pratt, C. J. “We are all of opinion that the plea is not good; as the plaintiff had a good cause of action, it can only be extinguished by a satisfaction which he agrees to accept, and it is not his agreement alone that is sufficient, but it must appear to the court to be a reasonable satisfaction. If 51. be (as is admitted) no satisfaction for 151. why is a simple contract to pay 51. a satisfaction for another simple contract of three times the value? In the case of a bond, another bond has never been allowed to be pleaded in satisfaction, without a bettering of the plaintiff's case, as by shortening the time of payment.” Judgment affirmed (59). So where in an action of indebitatus assumpsit for goods sold and deliveredy, to which the defendant pleaded non assumpsit, it appeared that the defendant, prior to his insolvency, was indebted to the plaintiff in 501. for goods sold and delivered; that the defendant, in consequence of his insolvency, had compounded with all his creditors, and paid them 78. in the pound, and at the time of such payment to the plaintiff,
i Passenger v. Brookes, 1 Bingh. N. C. p 9 Rep. 79. b. 587.
q Peytoe's case, 9 Rep. 79. b. k Barnett v. Glossop, 1 Bingh. N. C. r Shephard v. Lewis, T. Jones, 6. 633.
s Heathcote v. Crook shanks, 2 T. R. 1 Potts v. Sparrow, 1 Bingh. N. C. 594. 24. o Dyer, 75. b.
t Good v. Checsman, 2 B. & Ad. 328.
u Cumber v. Wane, Str. 426.
Cro. Car. 85. and Lovelace v. Cocket,
Hob. 68, 69. S. P.
(59) Lord Ellenborough, C. J. in speaking of this case of Cumber v. Wane, in Fitch v. Sutton, 5 East, 232, observed, that though it had been said by him in argument, in Heathcote v. Crookshanks, 2 T. R. 26. to have been denied to be law, and in confirmation of that, Buller, J. afterwards referred to a case, (stated to be that of Hardcastle v. Howard, H. 26 G. 3.) yet he (Lord Ellenborough) could not find any case of that sort ; on the contrary, the decision in Cumber v. Wane was directly supported by the authority of Pinnel's case, 5 Rep. 117. and it did not appear that Pinnel's case had ever been questioned.
promised to pay him the residue of his debt, when he should be of ability so to do, which he was proved to have been before action brought: To meet this case, the defendant produced a receipt signed by the plaintiff for the composition of 78. in the pound for his debt, which he acknowledged to be in full of all demands, and then insisted that this receipt was a discharge of the promise. A verdict having been found for defendant, on a motion for a new trial, Knight v. Cox, Bull. N. P. 153. was cited for the defendant, where the creditor having accepted a composition and signed a release to the defendant, who in consideration thereof promised to pay him the entire debt, it was holden, that the release was a good defence to an indebitatus assumpsit for the original cause of action : But Lord Ellenborough, C. J. said, in that case the original contract was extinguished by the release: but it could not be pretended that a receipt of part only, though expressed to be in full of all demands, must have the same operation as a release; it was impossible to contend that an acceptance of 171. 108. was an extinguishment of a debt of 501. He added, that there must be some consideration for the relinquishment of the residue,-something collateral, to shew a possibility of benefit to the party relinquishing his further claim, otherwise the agreement was nudum pactum (60). But the mere promise to pay the rest when of ability, put the plaintiff in no better condition than he was in before. Rule for new trial absolute. B. and C. being jointly indebted to A., A. sued B. alone, who did not plead in abatement; but B.'s attorney wrote a letter stating the hardship of his client being compelled to pay the whole debt, and offering to pay a proportional share. This offer was accepted, and A. gave a receipt for debt and costs in this action. A. then commenced an action against C. for the balance. It was contended, that the debt was already discharged; but the court2 were of a different opinion, observing, that the payment was not made in discharge of A.'s right against C.; and the result of the whole was, that it did not operate as a release or matter which could have been pleaded as an accord and satisfaction, but amounted merely to an engagement not to sue B., which could only be pleaded by himself. If an action be brought
z Watters v. Smith, 2 B. & Ad. 889.
(60) In Lynn v. Bruce, 2 H. Bl. 317. it was holden, that an agreement to accept a composition in satisfaction of a debt was not a sufficient consideration to support a promise by the debtor to pay the composition.