service for the defendant there, but the salary was a mere shift, to give the plaintiff more than 5 per cent. interest for his money. One year's salary having been paid, the parties agreed, that it should be deducted from the principal, the deed securing the salary cancelled, and a fresh bond taken for the remaining principal, with 5 per cent. interest, and on this bond the action was brought. Lawrence, J.-"The original contract between these parties was certainly usurious, and no action could have been maintained on the first bond: but there was nothing illegal in the last bond: it was not made to assure the performance of the first contract; nor does it secure more than 5 per cent. interest to the plaintiff. The parties saw they had before done wrong: they rectified the error they had committed, and substituted, for an illegal contract, one that was perfectly fair and legal. I see no objection to their doing that, and therefore am of opinion, that the present action is maintainable." Verdict for plaintiff. The reader should be apprized that there was a contrary decision by Chambre, J. on this point, viz. Barnes v. Hedley, 1 Campb. 157; but the preceding opinion of Lawrence, J. seems to be the better opinion; and the case of Barnes v. Hedley having been brought under consideration in the Court of Common Pleas, it was solemnly determined, that after the usurious securities had been cancelled by consent, a promise by the borrower to repay the principal and legal interest was binding m.

5. Infancy.

An infant may bind himself by a single bill to pay for necessaries; but if he enters into an obligation with a penalty such obligation may be avoided by a plea of infancy o, (22);

m Barnes v. Hedley, 2 Taunt. 184. o Ayliffe v. Archdale, Cro. Eliz. 920 n 1 Inst. 172. a. Russell v. Lee, 1 Lev. Moor, 679, S. C. 86.

"

(22) Whether such obligation be void or voidable appears to have been a vexata quæstio. See Morning v. Knopp, Cro. Eliz. 700. Authorities tending to shew that it is void, are, Noy's Rep. 85. Delavel v. Clare.-3 Com. Dig. 163. (C. 2.)—Bull. N. P. 182. If an infant become indebted for necessaries, and give a bond in a penalty for the money, it will not extinguish the simple contract debt; for the bond is void" (supposing such a bond to have been void at common law, on the ground of its being manifestly prejudicial to the

but infancy cannot be given in evidence under the general issue non est factum P. Upon the principle which exempts an infant from a penalty, it has been holden 9, that plaintiff may recover in an action for money had and received, a sum, which, while an infant, he had paid in advance towards the purchase of a share in defendant's trade; to be retained by defendant as a forfeiture, if plaintiff failed to fulfil an agreement to enter into partnership with the defendant.

An infant cannot give a security for interest; consequently to a bond with a penalty conditioned for payment of interest as well as principal, infancy may be pleaded in bar.

6. Payment-Solvit ad Diem-Solvit Post Diem, and Evidence thereon.

Payment. At the common law, it was a general rule, that where an action was grounded on a deed, the defendant could avoid it by matter of as high a nature only, as by an acquittance under seal. Hence to debt on a single bill, payment merely without an acquittance could not properly (23) be

p Whelpdale's case, 2nd Res. 5 Rep. 119. a. and new rules, ante, p. 544.

q Corpe v. Overton, 10 Bingh, 252. distinguishing Holmes v. Blogg, 8 Taunt. 35.

r Fisher v. Mowbray, 8 East, 330.

infant, quære, has the stat. 4 Ann. c. 16. s. 13, made any alteration in the law in this respect). Authorites tending to prove that such obligation is voidable only, are, Edmund's case, 1 Leon, 114.-2 Rol. Abr. 146. (A.) 4.—Litt. s. 259.-Perk. s. 12.-1 Bl. Com. 466. -Tapper v. Davenant, as reported in 3 Keb. 798, but not as reported in Bull. N. P. 155.—Salk. 279. per Treby, C. J. This question was again agitated in Baylis v. Dinely, 3 M. and S. 477, where it was decided on special demurrer, that in debt on bond to which the defendant pleaded infancy, the plaintiff could not reply that the defendant had ratified the bond after he came of age; the court observing, that the ratification must be by an instrument of as high a nature as that which created the original obligation. See ante, p. 130. stat. 9 G. 4. c. 14. s. 5.

(23) In Nichol's case, 5 Rep. 43. a. to debt on a single bill, the defendant pleaded payment without acquittance, on which issue was joined and found for the plaintiff. It was holden, that, although payment without acquittance was no plea, and that issue was joined on a thing not material; yet forasmuch as there was an issue joined on an affirmative and negative, which issue was found for the plaintiff, it was expressly helped by the statutes of jeofails, 32 H. 8. c. 30. and 18 Eliz. c. 14.

pleaded. But now, by stat. 4 Ann. c. 16. s. 12, where debt is brought on any single bill, if the defendant has paid the money due thereon, such payment may be pleaded in bar.

To debt on bond with a condition for the payment of money on a day certain, the defendant (having craved oyer of the condition,) might, even at common law, have pleaded payment at the day t; because such plea was in effect a plea of performance of the condition merely.

Solvit ad diem.-A plea of payment, from the language of the plea when the pleadings were drawn in Latin, has obtained the name of a plea of solvit ad diem. This plea is the proper form of a plea, as well where the money has been paid before the day, as where it has been paid at the day. Indeed, in the case of a bond conditioned for payment at a day certain, if the money has been paid before the day, solvit ad diem is the only proper plea"; for if the defendant, agreeably to the fact, should plead payment before the day, and issue should be joined thereon, and a verdict found for the plaintiff, and judgment accordingly; such judgment may be reversed on error; because there would still remain a possibility that the money was paid at the day, in which case the plaintiff would not have had any cause of action. Hence in the case of payment before the day, the defendant must plead a payment at the day; and then if issue is joined thereon, proof of payment before the day will be sufficient to support the defendant's plea (24). Where a bond is conditioned for the payment of money on or before such a day, the defendant may plead payment before the day, if the fact be so; and the plaintiff ought not to demur to such plea, as tendering an immaterial issue (25). But if to a bond so conditioned, the

s Doct. Plac. 107.

t Doct. pl. 107.

X

u Holmes v. Broket, Cro. Jac. 434. Merril v. Josselyn, 10 Mod. 147. Jernegan v. Harrison, Str. 317.

x Bond v. Richardson, Cro. Eliz. 142.

Dyer, 222. b. S. C. in marg. See also
Doctr. pl. 181.

y Fletcher v. Hennington, 2 Burr. 944.
and 1 Bl. R. 210.

z Tryon v. Carter, Str. 994. 7 Mod. 231. Leach's Ed.

(24) "In the case of a bond conditioned for payment at a certain day, there cannot properly be any legal performance of the condition, but by payment at the day. Payment before the day may indeed be given in evidence on solvit ad diem, but that proceeds upon this notion, that the money is considered as a deposit in the hands of the obligee until the day arrives, and then it is actual payment."— Per Lord Hardwicke, C. J. in Tryon v. Carter, 7 Mod. 231. Leach's Ed.

(25) "If no payment has in fact been made, the proper replica

defendant pleads payment on the day, and issue is joined thereon, and verdict for the plaintiff, a repleader must be awarded, as being an immaterial issue; for such verdict does not find any breach of the condition, because the money might have been paid before the day, which would have been a performance of the condition.

Solvit post diem.-The bond being forfeited by the nonpayment of the money on the day mentioned in the condition, a payment after the day could not be pleaded at the common law; but by stat. 4 Ann. c. 16. s. 12. "where debt is brought upon any bond, with a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligors, his heirs, executors, or administrators have, before the action brought, paid to the obligee, his executors, or administrators, the principal and interest due by the condition or defeasance, though such payment was not made strictly according to the condition or defeasance, yet it may be pleaded in bar of such action.”— The form of plea under this statute (usually termed a plea of solvit post diem) is, that the defendant, after the day mentioned in the condition, and before the commencement of the plaintiff's action, paid the money mentioned in the condition, with interest, according to the form of the statute, &c. This statute is confined to absolute payments". Hence a tender and refusal of principal and interest after the day, and before action brought, cannot be pleaded.

N.

By R. G. H. T. 4 W. 4. Pleas founded on one and the same principal matter, but varied in statement, description, or circumstances only, are not to be allowed. Ex. gr. Pleas of solvit ad diem, and of solvit post diem, are both pleas of payment, varied in the circumstance of time only, and are not to be allowed. But pleas of payment, and of accord and satisfaction, or of release, are distinct, and are to be allowed.

Evidence.-Formerly, if a bond had lain dormant for 20 years, or more, without payment of interest or circumstance to account for the acquiescence, this was evidence sufficient, whence a jury might have presumed payment; now, by stat. 3 & 4 W. 4. c. 42. [14th August, 1833] s. 3. all actions of debt, upon any bond or other specialty, shall be com

a Underhill v. Matthews, Bull. N. P. 171.

tion in this case is, that the money was not paid at the day mentioned in the plea, nor at any time before or after the making of the obligation."-Per Denison, J. 1 Bl. R. 210. and 2 Burr. 945.

menced and sued within ten years after the end of this present session, or within 20 years after the cause of such action or suit."

7. Release.

To debt upon bond, the defendant may plead a release, by the plaintiff, after the bond given (26). If there are two or more obligees, a release by one will be a bar to all. In debt on bond, by several plaintiffs, as trustees, &c. the defendant pleaded a release from one of the plaintiffs. On demurrer, the plea was holden good; for the obligees only had the legal interest, and consequently the right to release; and a release from the one was a release from the others. If there are two or more obligors, a release to one may be pleaded in bar by the other, whether the bond be joint, or joint and several, for there is but one duty extending to all the obligors, and therefore a discharge of one is a discharge of all. It is immaterial whether the release be by deed, or by operation of law f (27); for where the obligee in a joint and several bond, made one of two obligors his executor, who administered and died, it was holden 8, that the surviving obligor was discharged; for a personal action once suspended by the voluntary act of the party entitled to it, is for ever gone and discharged. So where the obligee in a joint and several bond made one of two obligors his executor, with others",

b 2 Rol. Abr. 410. 1. 47.

c Bayley v. Loyd, M. T. 12 G. 2. C. B.
7 Mod. 250. Leach's edit.
d 2 Rol. Abr. 412. (G.) pl. 4.

e Ib. pl. 5. 1 Inst. 232. a.

f Cheetham v. Ward, 1 Bos. and Pul. 639.

g Dorchester v. Webb, 3d Resolution. Sir W. Jones, 345.

h Cheetham v. Ward, 1 Bos. and Pul. 630. recognized and applied to a promissory note, indorsed by executor of payee. Freakley v. Fox, 9 B. & C. 130.

(26) It seems that if the release has been obtained fraudulently, the special circumstances under which it was given, and that it was obtained by fraud, may be replied. See a replication of this kind in Craib v. D'Aeth. 7 T. R. 670. n. (b.) It is worthy of remark, that in Legh v. Legh, 1 Bos. and Pul. 447. where the obligor, after notice of the bond having been assigned, took a release from the obligee, and pleaded it to an action brought by the assignee in the name of the obligee, the court (exercising, as it should seem, an equitable jurisdiction) set aside the plea on a summary application.

(27) But a release by will is not sufficient. Parsons v. Coward, C. T. H. 357.