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ABANDONMENT.

Of Contract.]-Conversations in which the party stated that his interest was different from that provided by the agreement, and a letter applying to the landlord for a different interest-Held, not an abandonment of the agreement. Moore v. Crofton, 9 Ir. Eq. R. 344; 3 Jo. & Lat. 438.

A verbal agreement to accept a less rent than that mentioned in an agreement to grant a lease, followed by acceptance thereof, is not per se an abandonment of the former contract; nor does it operate as a substitution of a new agreement for a former one; or as the creation of a new tenancy in which the old tenancy merged. Clarke v. Moore, 7 Ir. Eq. R. 515; 1 Jo. & Lat. 723.

A principal agreed to sell part of his estate to his agent, being ignorant at the time that the agreement included the only turf bog on the entire estate, there being no concealment or apparently any knowledge of that circumstance by the agent. The agent, who was named a trustee for sale in his will, gave assistance to his co-trustees, and did not insist on the agreement for nearly a year after the death, and after the estate was advertised for sale :-Held, that the first circumstance would be a ground to refuse specific performance; and the latter was a virtual abandonment of the agreement. Chambers v. Betty, Beat. 488.

A., being entitled to an undivided moiety of a piece of ground, agreed with B. that, in case either of them should purchase the other moiety, they would divide the whole between them in a particular manner; the moiety was bought by a third person; whereupon A. and B. further agreed that neither of them would purchase such moiety until they had agreed upon a sum to be given for it, subject to the stipulations of the former agreement. B. afterwards entered into negotiations for the purchase of the property, to which he solicited the concurrence of A., and particularly as to fixing the price; but A. declined doing so; upon which, B. bought the property, but afterwards offered to A. to carry the original agreement for partition into

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effect, but A. refused to have anything to do with him :-Held, that this was an abandonment of the agreement by A., and that he could not set it up as a defence to a suit by B. for partition in the ordinary way. Morris v. Timmins, 1 Beav. 411.

If the purchaser demands his deposit at the day for completing the contract, and the vendor has not delivered his abstract before that time, and also neglects to deliver it until after an action brought for the deposit, it is evidence of an abandonment of the contract by the vendor, and he shall not be entitled afterwards to a specific performance. Lloyd v. Collett, 4 Bro. C. C. 469. See also Reynolds v. Nelson, 6 Madd. 18; 22 R. R. 225.

Where a party to a written contract enters afterwards into a parol one inconsistent with it, he thereby so far abandons the written contract, that he cannot enforce a specific performance of it in equity. Gilbert v. Hall, 1 L. J., Ch. 15.

Specific performance of an agreement refused, the party seeking performance having been held under the circumstances to have abandoned the contract. Garrett v. Besborough (Earl), 2 Dr. & Wal. 441; 2 Ir. Eq. R. 180.

A. was tenant to B. of premises for a term of two years, at the yearly rent of £150, with an option upon the part of A. to have a lease at the expiration of the term, at the yearly rent of £120, A. to take the fixtures at a valuation. A., at the expiration of the term, exercised his option to take the lease, and the price of the fixtures was agreed upon at £150, and £45 was paid by way of deposit. A draft lease was forwarded to A., which not being returned in due time, B. wrote to A., giving notice that unless he sent back the draft lease approved, and carried out his agreement within a week, he should treat the deposit on account of fixtures as forfeited, and consider him as tenant from year to year, at the annual rent of £150. A. wrote in reply, returning the draft lease, declining to accept the same, and stating that he considered himself as a yearly tenant at the rent of £120, and demanding the

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return of the deposit. Upon a bill filed by B., for specific performance :-Held, that B.'s letter amounted to an abandonment of the agreement; and the bill was dismissed with costs. Chubb v. Fuller, 4 Jur. (N.S.) 153.

B. agreed to sell her estate, and raise £1,000 for A.'s use, and pay off two mortgages on his estate, in consideration for which A. agreed to pay B. interest for life, and to settle his own estate on his wife (B.'s daughter) and their children. The money was raised on a mortgage of B.'s estate, and the joint and several covenants of A. and B. Seventeen years elasped without any further steps being taken to carry the agreement into effect, and A. died :-Held, that the agree ment must be considered as abandoned, and that it could not be enforced. Cubitt v. Blake, 19 Beav. 454.

See also CONTRACT PURCHASER (A).

(G).-VENDOR AND

Of Rights.]-Testator by will directs his business to be carried on by his executors, and that when his son B. (the bankrupt) attains 21, he should, on performing certain terms, be admitted to a fourth share; B., at the age of 20, enters into another business on his own account, and never claims the right under the will or performs those terms-Held, nevertheless, that he has not abandoned the right, and therefore that his assignees have a right to call the executors of the will before the commissioner and examine them as to the affairs of the partnership. Marks, Ex p. and In re, 1 Dea. & Ch. 499; 1 L. J., Bk. 111.

A creditor, having a security for his debt upon funds of the debtor, takes afterwards, either alone, but on behalf of himself and B., another creditor of the same debtor, or jointly with B., a security for both debts on the same funds which were the subject of A.'s separate security. A. does not therefore necessarily relinquish the separate security or alter its precedence. Miln Walton,

V.

ABDUCTION.

See CRIMINAL LAW, TORTS.

ABORTION.

See CRIMINAL LAW.

ABSCONDING DEBTOR. See DEBTORS ACT.

ABSTRACT OF TITLE. See VENDOR AND PURCHASER.

ACCESSORY.

See CRIMINAL LAW.

ACCIDENT.

See ACT OF GOD, INSURANCE, NEGLIGENCE, WORKMEN'S COMPENSATION, CARRIERS, SHIPPING.

ACCOMPLICE.

See CRIMINAL LAW.

ACCORD AND SATISFACTION.

A. GENERALLY.

B. BY PAYMENT.-See PAYMENT.

Accord

A. GENERALLY.

without Satisfaction.]-Accord without satisfaction cannot be pleaded alone to a deed. Parker v. Ramsbottom, 3 B. & C. 257; 5 D. & R. 138; 3 L. J. (o.s.) K. B. 16. See Collingbourne v. Mantell, 5 M. & W.

289: 7 D. P. C. 518; 8 L. J., Ex. 251.

A plea that the plaintiff and defendant agreed to settle all matters in dispute, and to bind themselves in a penalty not to sue : each other, is a bad plea. James v. David, [1793] 5 Term Rep. 141.

Accord and satisfaction made before breach of a covenant, cannot be pleaded in bar of an action on the covenant. Kaye v. Waghorn. [1809] 1 Taunt. 428; Selwyn, N. P. (13th ed.) 468.

An agreement for an accord and satisfaction is not enforceable by action, and if it be not performed the original debt revives. Reeves v. Hearne, 1 M. & W. 323; 2 Gale, 4; 5 L. J., Ex. 156. See Bayley v. Homan, 3 Bing. (N.C.) 915; 6 L. J., C. P. 309; 3 Hodges, 184; 5 Scott, 94.

To an action for a debt, a plea that the plaintiff in consideration that the defendant would secure the debt by executing a mortgage of premises when called on to do so,

the amount to carry interest and be payable by instalments, undertook that no proceedings should be instituted against him in respect of the debt unless default were made in paying the instalments. The plea averred the defendant's constant readiness to execute the mortgage, but that he had never been called on to do so-Held bad, for pleading matter of accord without alleging it by way of satisfaction. Allies v. Probyn, 2 C. M. & R. 408; 5 Tyr. 1079; 4 D. P. C. 153; 4 L. J., Ex. 227.

To an action by assignees of a bankrupt assurance association, the defendant pleaded, that, before the bankruptcy, it was agreed between the association and the defendant that policies which had been effected by the defendant with the association, and which were existing, should be forthwith cancelled and delivered up to the association, which should thereupon be exonerated and discharged from the insurances, and that the premiums thereupon paid or payable by the defendant, or a rateable proportion thereof, after deducting so much as would be fairly payable in respect of risks already incurred, should be allowed in account to the defendant, and set off against the moneys due from the defendant to the association, and that the defendant thereupon should be acquitted, exonerated, and discharged from the payment of so much of the moneys as the premiums so to be allowed should amount to. The plea stated that the amount of premium so to be allowed was a certain sum, and averred that, in pursuance of the agreement, the defendant delivered up the policies, and that they were cancelled, and that the defendant was in consequence thereof exonerated and discharged from the payment of that sum-Held, that the plea was bad in substance; for, that the agreement being to deliver up the policies to be cancelled, and to allow the premiums, the plea ought to have alleged that such allowance was made. Graham V. Gibson, 4 Ex. 768; 19 L. J., Ex. 204.

A plea that A. was indebted to the defendant in a larger sum, and that A. being in prison in Scotland as a debtor the defendant authorized the plaintiff to receive from A. the sum so due to him from the defendant; and that the plaintiff, instead of receiving the sum from A., received from A. a bill of exchange for and on account of the sum, and that he appropriated and retained the bill for and in liquidation and discharge of the debt, and that he discharged A. from the debt, according to the law of Scotland :Held, that the plea did not import either satisfaction or payment. Baillie v. Moore, 8 Q. B. 489; 15 L. J., Q. B. 169; 10 Jur. 592. An averment that a bill of exchange was given for and on account, and in payment and discharge of a debt, is not equivalent and does not amount to a satisfaction extinguishment of the debt. M'Dowall v. Boyd, 6 D. & L. 149; 2 B. C. Rep. 298; 17 L. J., Q. B. 295; 12 Jur. 990.

or an

To an action for infringing a patent, the i defendant pleaded, that it was agreed

between the plaintiff and the defendant that the latter should admit his liability to the action; that he should take and the plaintiff grant a licence for the use of the invention; that he should hand a cheque to a third person, to be held till the grant of the licence; that the plaintiff and the defendant should bear their own costs of the action, and that the action and the causes of action included in the same, should be settled, satisfied and terminated by the arrangement and agreement before mentioned. That the defendant admitted his liability, drew and delivered the cheque, and had always been ready and willing to perform the agreement, take the licence, and pay his own costs, of which the plaintiff had notice :-Held, that the plea was bad; for if the agreement were construed as an accord in respect of the things to be done, there was no averment of satisfaction, the stipulation of the defen dant not having been all performed; and if making the agreement itself was relied upon, there was no allegation, expressed or implied, that the agreement was accepted in satisfaction. Hall v. Flockton, 16 Q. B. 1039; 20 L. J., Q. B. 201; 15 Jur. 600-Ex. Ch.

Where a cause of action for breach of contract has been discharged by a second agreement between the parties, whereby the person alleging the breach has accepted the promise of the other party to perform the second agreement in accord and satisfaction of the first agreement, the right of the former to proceed against the latter on the first agreement is at an end, and his right of action is for breach of the second agreement, and an action is brought on the original agreement, in which accord and satisfaction is pleaded and proved, and the judge has refused to allow the plaintiff to amend his pleadings, and has dismissed the action, the only remedy of the plaintiff is to initiate a fresh action on the substituted agreement. Flockton v. Hall (19 L. J., Q. B. 1; 14 Q. B. 386) discussed. Elton Cop Dyeing Co. v. Broadbent & Son, Lim., 89 L. J., K. B. 186; 122 L. T. 142-C. A.

To an action by payee against acceptors of two bills, they pleaded that before the bills became due, and before the delivery to the plaintiff, it was agreed between him through the drawers, as his agents, and the acceptors and A., that in consideration of them and A. paying the drawers £500 in settlement of accounts, the plaintiff would accept a dividend of 2s. 9d. in the pound on these and other bills accepted by the defendants and A., and within one month would deliver up the bills, receiving the dividend on each acceptance; that a place of tender of the composition was agreed upon, and a penalty of £500 agreed to be paid on default on either side; that the defendants and A. paid to the drawers, and they accepted, the £500 in settlement, and the defendants and A. tendered the dividend, of all which the plaintiff had notice; that the plaintiff refused to accept the dividend, and failed to deliver up the acceptances :-Held, that the plea was bad in substance, as it contained no allegation

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that the agreement to accept the dividend was taken in satisfaction or substitution of the agreement on the bill, and it was consistent with the plea that the plaintiff may have elected to pay the penalty for default in performance of the agreement. Buttigeig v. Booker, 9 C. B. 689; 19 L. J., C. P. 330. To an action upon contract for the delivery of 600 loads of timber at Dantzig, the defendant pleaded that before action, it was agreed that he should deliver to the plaintiff, in London, other timber, and that. such other timber should be received by him in full satisfaction of all causes of action upon the contract; that the defendant, in part performance of such agreement, delivered to the plaintiff, who received of him, 143 loads in full satisfaction of the causes of action so far as they related to 143 loads of timber in the contract mentioned; and that the defendant, within a reasonable time, tendered the residue of the timber to complete the contract Held, that the plea was neither good as a plea of accord and satisfaction, for want of an averment of satisfaction, nor as a plea of performance, there being no averment, expressed or implied, that the substituted agreement was accepted in satisfaction.

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Gabriel v. Dresser, 15 C. B. 622; 3 C. L. R. 415; 24 L. J., C. P. 81; 3 W. R. 236.

To an action for money lent, a plea that the defendant gave the plaintiff an authority to receive, as the defendant's agent, money due to the defendant, to an amount exceeding the amount lent, and to pay himself, and agreed not to receive the same otherwise than by the plaintiff's agency; and that the money was not received in consequence of the plaintiff's negligence and default, and thereby became wholly lost to the defendant :-Held, bad, as amounting neither to an accord satisfaction. Gifford v. Whittaker, 6 Q. B. 249; 13 L. J., Q. B. 325; 8 Jur. 1134. S. P., Griffiths v. Owen, 13 M. & W. 58; 2 D. & L. 190; 13 L. J., Ex. 345.

nor

Time for.]-Where a promissory note was payable a month after demand, forgiveness of the amount of the note is no defence unless the forgiveness be before the note has become payable. Smith V. Gordon, 1 Cab. & E. 105.

In an action upon a covenant to pay money upon a contingency, an accord executed before the contingency happened is a bad plea. Healey v. Spence, 8 Ex. 668; 22 L. J., Ex. 249.

Action of Ejectment.]-In ejectione firmæ against several, they pleaded that after the trespass and ejectment it was agreed that one of the defendants should pay to the plaintiff in satisfaction £6 10s. at the Feast of St. M. then next following, and that for the payment thereof, he should be bound in a bond of £13 and pleaded performance thereof and receipt of the money. The plaintiff demurred; the plea was held to be good, and judgment was given for the defendants. Peytoe's Case, [1611] 9 Co. Rep., 77b; 1 Brownl. 133; 2 Brownl. 128; Godb. 149.

An agreement between a bond debtor and his creditor that the latter shall take all the debtor's property, and pay his other creditors 5s. in the pound, though not a discharge of the bond at law by way of accord and satisfaction, because not under seal, still operates in equity as a satisfaction of the debt; and it is not possible in equity, upon such a transaction, to reserve any rights against the surety, and any attempt to do so would be void, as being inconsistent with the agreement. Webb v. Hewitt, 3 Kay & J. 438.

Where there is a condition in a deed to do a collateral act, accord with execution for money or other thing is no satisfaction to save the forfeiture. But if such condition was to pay money, by accord some other thing might be given instead of the money in satisfaction of the condition. Peytoe's 1 Case, 9 Co. Rep. 77b; Brownl. 133;

2 Brownl. 128; Godb. 149.

A right or title of freehold cannot be barred by any accord with collateral satisfaction, although the satisfaction is of as high a nature as the right of freehold. Ib.

In an action of covenant for not repairing, accord with satisfaction is a good plea. Where a duty accrues by a deed in certainty, although the duty be merely in the personalty, a discharge must be by deed; but where no certain duty accrues by the deed, but a wrong or default subsequent, together with the deed, gives an action to recover damages, which are only in the personalty, for such wrong or default accord with satisfaction is a good plea; and generally in all actions where damages only are to be recovered, arbitrament, or accord with satisfaction, is a good plea. Blake's Case, [1605] 6 Co. Rep., 43b.

Acceptance.]--An acceptance in satisfaction must be an act of the will in the party receiving. Hardman v. Bellhouse, 9 M. & W. 596: 11 L. J., Ex. 135.

To a declaration alleging a breach of an agreement therein set forth, and consequent damage to the plaintiffs, it was pleaded that