dation, 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. 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. 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.

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. 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

i Passenger v. Brookes, 1 Bingh. N. C.

587.

k Barnett v. Glossop, 1 Bingh. N. C. 633.

1 Potts v. Sparrow, 1 Bingh. N. C. 594. o Dyer, 75. b.

p 9 Rep. 79. b.

q Peytoe's case, 9 Rep. 79. b.

r Shephard v. Lewis, T. Jones, 6.

s Heathcote v. Crookshanks, 2 T. R. 24.

Good v. Cheesman, 2 B. & Ad. 328.

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 157." the defendant pleaded, that he gave the plaintiff a promissory note for 57. 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 51. could not be a satisfaction for 157.; 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 157. 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 50l. 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,

u Cumber v. Wane, Str. 426.

x Manhood v. Crick, Cro. Eliz. 716.

Cro. Car. 85. and Lovelace v. Cocket,
Hob. 68, 69. S. P.

y Fitch v Sutton, 5 East, 230.

(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 177. 10s. 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.

on a quantum meruit, and the defendant agree to pay a less sum than the demand in full, that is a good consideration for a promise by the plaintiff to pay his own costs and proceed no further. Payment of a less sum than the demand, has been held to be no satisfaction in the case of a liquidated debt; but where the debt is unliquidated it is sufficient. Per Parke, J. Wilkinson v. Byers, 1 Ad. & Ell. 113. But the defendant may pleada, that he was the payee of a promissory note, and that he indorsed it to the plaintiff on account of the debt sued for; because, though the promissory note is not a security of a higher nature than the simple contract debt sought to he recovered in the action of assumpsit, yet it gives the plaintiff the advantage of holding a third person liable to him. In this case the security was given for the whole debt; and this seems necessary to entitle the party to plead it in bar; for where a debtor had compounded with his creditors, giving them the security of a third person for payment of part of the stipulated dividend, it was holden, that he was not discharged upon payment of that only, the residue continuing unpaid. And further, although if creditors simply agree to accept less from their debtor than their just demand, that will not bind them; yet if, upon the faith of such an agreement, a third person (also a creditor) be induced to become surety for any part of the debts, on the ground that the party will be thereby discharged, the agreement, though not under seal, will be binding: and a creditor, after the security given has been paid, cannot sue for the residue of his demand; for that would be a fraud on the surety .-N. It did not appear, in this case, that the plaintiff had induced any of the other creditors or the surety to sign the agreement. But where the plaintiff and other creditors of the defendants subscribed to resolutions for entering into a composition deed with the defendants, upon their property being assigned to trustees for the payment of their creditors; the defendants and their trustees having refused to allow the plaintiff to come in as a creditor under the deed; it was holden, that the plaintiff, although he had subscribed the resolutions, might, notwithstanding, sue the defendants for the amount of his demand. If the creditors sign an agreement to give the debtor time for the payment of their respective demands, and to take his promissory notes for the amount, they cannot sue for the original cause of action, without proving that the

a Kearslake v. Morgan, 5 T. R. 513.
b Walker v. Seaborne, Taunt 526.
c Steinman v. Magnus, 2 Campb. 124.
11 East, 390. See also Bradley v.

Gregory, 2 Campb. 383. And Wood

v. Roberts, 2 Stark. N. P. C. 417. Abbott, C. J.

d Garrard v. Woolner, 8 Bingh. 258.

agreement has been broken on the part of the debtorf. An 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 performances.

3. Infancy.

3. Infancy. The defendant may plead that he was an infant at the time of making the promise (61). This privilege of avoiding contracts, which the law confers on such as enter into them during their minority, that is, (by the law of England,) within the age of 21 years, is a personal privilege, the benefit of which must be claimed by the infant, and which can not be exercised for him by any other person. The plea of infancy ought not to be pleaded by attorney, but by guardian; for an infant cannot appoint an attorney. In cases where the contract declared on by the plaintiff has been made with the infant for necessaries suitable to his estate and degree, the plea of infancy will not operate as a bar to the plaintiff's demand; for the law permits an infant to bind himself, either by simple contract, or single bill', for necessaries, (viz.) necessary meat, drink, apparel, necessary physic, proper instruction, and the like; hence it frequently becomes a question what are necessaries. In an action for goods sold and delivered', it appeared that the goods in question were a livery for a servant of the defendant, who was a captain in the army, and cockades for some of the soldiers belonging to his company. The defendant relied on his infancy, insisting that the goods in question were not within the description of necessaries; the judge left it to the jury to consider whether the livery was not suitable to the degree, and the cockades a necessary expense

f Boothbey v. Sowden, 3 Campb 175. But see Cranley v. Hillary, 2 M. and

S. 122.

g Com. Dig. Accord B. 4. recognized per Cur. Cartwright v. Cooke, 3 B. & Ad. 701.

h Per Eyre, C. J. in Keane v. Boycot,

i

2 H. Pl. 515, and Ellenborough, C.J. in Taylor v. Croker, 4 Esp. N. P. C. 187.

Russell v. Lee, 1 Lev 86, 87. k 1 Inst. 172. a.

1 Hands v. Slaney, 8 T R. 578.

(61) Payment of money into court will not preclude a defendant from availing himself of his infancy, because the money may have been paid into court for necessaries. Per Buller, J. in Hitchcock v. Tyson, 2 Esp. N. P. C. 481. n.