plaintiffs would be presumed to be tenants in common of the debt and security; and that, therefore, inasmuch as the defence contained no allegation of facts whereby this presumption might be rebutted, it was insufficient and must be amended. Steeds v. Steeds, 58 L. J., Q. B. 302; 22 Q. B. D. 537; 60 L. T. 318; 37 W. R. 378.

To an action by three for a joint demand, the defendant pleaded satisfaction with one of them, by part payment in cash, and a setoff of a debt due from that one to the defendant-Held, a good plea, without alleging any authority from the other two to make the settlement. Wallace v. Kelsall, 7 M. & W. 264; 8 D. P. C. 841; 10 L. J., Ex. 12; 4 Jur. 1064.

To an action by surviving partners against a defendant, for a debt alleged to be due to the firm, he pleaded that he had been tenant to the deceased partner of a house in which he had an interest, and that, pursuant to an agreement between himself and such partner, he had surrendered the house, in satisfaction of the debt. There was no allegation that the plaintiffs were parties to the agreement :Held, a good defence, because the effect of the agreement having been to suspend the right of action during the life of the deceased partner, that could not revive upon his death, but was altogether extinguished. Crowe v. Lysaght, 12 Ir. C. L. R. 481.

A count that A. and B. were tenants of chambers to C., at a rent payable quarterly, and that, in consideration that A. and B. would underlet the chambers to D. at a

certain rent, D. promised A. and B. to pay the rent to C., and, if not, to indemnify A. and B. in respect thereof, and to pay the same to them. Breach, non-payment by D. of the rent due from A. and B. to C. Plea, that before the rent became due from A. and B. to C., it had been agreed between A., for and on behalf of B. and with his authority, and D., that D. should deliver up possession to A., and that in consideration D. should be discharged from further liability for rent, and that D. deliver up possession to A., which he on behalf of himself and B. accepted-Held, that the plea set up a good defence by way of executed contract. Smith v. Lovell, 10 C. B. 6; 20 L. J., C. P. 37; 15 Jur. 250.

an

Allowance of Cross Demands.]-To action for money due on an account stated, it is not sufficient to plead that the defendant and plaintiff accounted together of and concerning the action, and all other claims and demands between them amounting to £1,000; and that on such accounting, a small sum, to wit, £150, was found to be due and owing to the plaintiff, which the defendant promised to pay, and afterwards paid to the plaintiff, who accepted it, in full satisfaction of the sum due to him from the defendant; for such a plea does not show that, at the time of the second accounting relied on, any cross demand by the defendant against the plaintiff existed, or that, if it existed, it had not been agreed to be given up by the defendant in consideration

other as to

of the plaintiff's giving up some demand of his on the defendant, so make payment of the balance a satisfaction of the larger sum. Smith v. Page, 15 M. & W. 683.

To an action on several bills of exchange and for goods, the defendant pleaded that he and the plaintiff accounted together of and concerning these causes of action, and of and concerning other claims and demands of the plaintiff against the defendant, and certain other claims and demands of the defendant against the plaintiff; and on that accounting the sum of £50 and no was found to be due from the defendant to the plaintiff, which sum the defendant promised the plaintiff to pay to him on request; and that the plaintiff received from

more

the defendant £50 in satisfaction of such sum :-Held, that the plea amounted to an allegation of the allowance of cross demands upon an account stated, and payment of good defence. Callander v. Howard, 10 C. B. the balance, and afforded substantially a

250; 1 L. M. & P. 562; 19 L. J., C. P. 312; 14 Jur. 672.

Married Woman Separation DeedAlimony-Restraint on Anticipation-Purported Release of Alimony-Covenant not to Sue for Alimony-Validity-Acquiescence— Release Notional Payment.]-A husband and wife, by a formal separation deed, agreed from thenceforth to live apart, and at the same time a sum of £1,000 was transferred to a trustee to pay the annual income thereof to the wife during her life. The deed to pay to the wife such further sum husband also covenanted in the separation as should, together with the annual income of the £1,000 already mentioned, make up for the wife a total income of £100 a year. It was agreed that this sum of £100 should be the separate property of the wife, without power of anticipation. Divorce proceedings were subsequently commenced against the tion that the husband should thenceforth wife, but were compromised upon the condi

be released from the payment of this additional sum; and a covenant was inserted on the part of the wife to the effect that she would not molest her husband by suing for the additional sum in question. The investment of the £1,000 produced a yearly income of £40, which was paid to the wife by the trustee by quarterly cheques of £10 each; but no further payment was made by the husband to the wife, nor did the wife sue for the annual difference between £40 and £100. The wife having died, her personal legal representative sued the

husband for the recovery of all the annual differences from the date of the release to the date of her death. The husband counterclaimed for damages for this breach of the wife's covenant not to sue for these differences -Held, that the payment by the trustee of the annual sums of £40 was no accord and satisfaction for the liability of the husband to pay the annual differences, even though this payment was made by cheque; that the facts of the case afforded the court no ground for inferring a notional

payment of the differences on the part of the husband; and that there was no conduct on the part of the wife which amounted to acquiescence, or equitable release :-Held, accordingly, that the personal representative of the wife was entitled to recover the arrears of all the differences. Strong Bird (43 L. J., Ch. 814; L. R., 18 Eq. 315) distinguished. Sprange v. Lee, 77 L. J., Ch. 274; [1908] 1 Ch. 424; 98 L. T. 400.

V.

Breach of Covenant to Pay-Subsequent Cohabitation.]-Where a husband and wife are living apart under a deed of separation and the husband has made default in pay. ment of instalments due to the wife under the deed, а resumption of cohabitation subsequent to such default does not of itself amount to accord and satisfaction of the cause of action which has already accrued to the wife in respect of the arrears of the instalments. Macan v. Macan, 70 L. J.,

K. B 90.

Actions for Personal Injuries.]-In an action for an injury sustained through a railway accident, the plaintiff, at the time, not supposing that he had sustained any serious injury, accepted of the company £2 as compensation for damage to his clothes :Held, that the receipt of this sum could not be set up as an accord and satisfaction for a patent and severe injury to the brain or spine. Roberts v. Eastern Counties Ry., 1. F. & F. 460.

The plaintiff, who was injured in a railway collision, signed a receipt for a sum of money paid him by the railway company in full satisfaction and discharge of all claims. He returned to work, but his eyesight soon began to fail, and he became totally blind. Having commenced an action to recover damages from the railway company, the defendants pleaded that the action was not maintainable, and the question was ordered to be tried first, whether the plaintiff had by his conduct debarred himself from suing for damages :Held, that the action was maintainable, it being a question for the jury. Ellen v. Great Northern Railway, 49 W. R. 395; 17 T. L. R. 338. Affirmed, 17 T. L. R. 453-C. A.

In an action for injuries arising from a concussion, caused by a collision of railway trains, the plaintiff having the day after the occurrence agreed in terms to accept a sum in satisfaction of the injuries, and all consequences arising therefrom-Held, that if his mind went with those terms, and he understood their effect when he assented to them, he was bound by the agreement, and could recover no further compensation, even although it appeared that he had sustained serious and permanent injuries, latent and undiscovered until some time afterwards, and of which he had no idea at the time he entered into the arrangement. Rideal v. G. W. Ry., 1 F. & F. 706.

To an action for compensation for personal injuries from a railway accident the company pleaded a receipt in full; the plaintiff then filed a bill in equity alleging the receipt to have been obtained by fraud, and praying that the company might be restrained from

setting it up, but for no further relief :Held, that, although the plaintiff might have met the plea by an equitable replication, he was entitled to come to equity for the relief needed for the purposes of his action, and that he had rightly limited the prayer of his bill to such relief. Stewart v. G. W. Ry., 2 De G. J. & S. 319; 11 Jur. (N.s.) 627; 13 L. T. 79; 13 W. R. 907.

A passenger who was injured by a railway accident sent in a claim for £691 compensation. The traffic manager of the company called upon him, and after some discussion the passenger accepted £400, and gave a receipt acknowledging it to be in full discharge of his claims. About a year afterwards he commenced an action against the company for further compensation, to which the company pleaded that he had accepted £400 in full satisfaction and discharge of the causes of action. The plaintiff then filed a bill to restrain them from relying on the plea, and from setting up the acceptance of the £400, or the receipt, as a satisfaction or discharge of the damages, except to the extent of £400. The bill did not allege fraud, but that the plaintiff had signed the receipt on the express condition that he should not thereby exclude himself from further compensation if his injuries turned out more serious than was supposed at the time-Held, that, as the statement in the receipt could be rebutted by evidence that the plaintiff did not receive the money in full satisfaction of all demands, the whole case could be tried at law better than in equity; and that the bill ought to be dismissed. Lee v. Lancashire and Yorkshire Ry., L. R. 6 Ch. 527; 25 L. T. 77; 19 W. R. 729.

To a defence in an action for personal injuries, of a release by deed, it was replied that the execution of the deed by the plaintiff was procured by the company fraudulently representing for that purpose that his injuries were of a trivial and temporary nature, and that if they should afterwards turn out to be more serious than he then anticipated, he would still, even though he had executed the deed, be in a position to obtain and would obtain further compensation from the company-Held, that there was a fraudulent misrepresentation of fact alleged sufficient to avoid the deed as against the plaintiff, who had been thereby induced to execute it. Hirschfield v. L. B. & S. C. Ry., 46 L. J., Q. B. 94; 2 Q. B. D. 1; 35 L. T. 473.

Semble, that the deed would equally have been avoided by the second allegation that the fraudulent misrepresentation had been as to the legal effect of the deed which the plaintiff was thereby induced to sign. Ib.

An employer tendered £2 7s. 4d. to D., a workman, who had been injured in his employment, as in full satisfaction of any claim he might have in respect of the accident, stating, as was the fact, that he had obtained a report from a surgeon that D. would be fit to return to his work in six weeks from the date of the accident. accepted the money, and granted a discharge in full. The medical opinion on which both

D.

- Under Lord Campbell's Act.]-In an action under 9 & 10 Vict. c. 93 (Lord Campbell's Act), accord and satisfaction with the person injured in his lifetime is a defence to proceedings by his representatives after his death. Read v. G. E. Ry., 9 B. & S. 714; 37 L. J., Q. B. 278; L. R. 3 Q. B. 555; 18 L. T. 82; 16 W. R. 1040.

In Action for Libel.]-Accord and satisfaction is a good plea to an action for a libel. Boosey v. Wood, 3 H. & C. 484; 34 L. J., Ex. 65; 11 Jur. (N.s.) 181; 13 W. R. 317.

An agreement that apologies on each side shall appear in the several newspapers of the plaintiff and the defendant, executed by the latter, will form a valid plea of that kind. Ib.

Sufficiency of Consideration for.]Covenant for not repairing. The defendant pleaded, that, after breach, an agreement was entered into between the plaintiff and himself, that in consideration that the defendant had become tenant of the premises, and promised to repair the same before April 12, the plaintiff would not in the meantime commence any action on account of the breach of covenant; but that the plaintiff commenced his action before April 12 :-Held, that this plea was bad in being a plea of accord executory only, and not executed, in showing no good consideration between the parties to the agreement, as the defendant was already liable to damages under the covenant for not repairing; and therefore his promise to repair by April 12 was no consideration for the plaintiff's promise to forbear; and that the defendant's promise to repair not having been made until after the new tenancy was no the plaintiff derived contracted, sideration from such tenancy. Bailey v. Homan, 3 Bing. (N.c.) 915; 3 Hodges, 184; 5 Scott, 94; 6 L. J., C. P. 309.

con

Action on an agreement, that two actions pending at the suit of the plaintiff against the defendant should be settled, and all proceedings therein stayed, and that the defendant should pay the plaintiff's money. Breach, non-payment:-Held, that the count disclosed not a mere executory accord, but agreement, an with sufficient consideration to support the promise; and that the action lay. Crowther v. Farrer, 15 Q. B. 677; 15 Jur. 535.

To a note given by the defendant to his father, he pleaded that he had just grounds to complain of the distribution of his father's property, as his father had admitted, and that it was therefore agreed between them that the defendant should cease for ever to make any such complaint, and that in consideration thereof his father would discharge

him from liability on the note, and that the defendant's agreement should be accepted in full satisfaction and discharge, and that it was so accepted :-Held, that the plea was bad, as not showing any consideration for the White v. Bluett, 2 promise by the father.

C. L. R. 301; 23 L. J., Ex. 36; 2 W. R. 75. Action upon two deeds, whereby the defendant's testator covenanted to pay money with interest. Plea, that the plaintiff was a an estate which was inmortgagee of sufficient, upon an estimate of its value, to pay the mortgage money due from the testator; that three other mortgagees were in the same situation, the estate realized to each being less in estimated value than the charge upon it; that the defendant was devisee of the real estate, and executor of the deceased mortgagor; that he had received assets, which after deducting the costs and expenses payable by him in the first instance, and in preference to the debts due from the testator, and also excepting some furniture, amounted to the deficiency on each mortgage; and thereupon it was agreed between the plaintiff and the defendant, and each of the mortgagees, as the common consent of all, and at the request of each, that no suit should be instituted for the administration of assets, and that the balance of the assets, after deducting the furniture which should be given to the widow, should be divided rateably between the different mortgagees, and paid to them in satisfaction of the sums due to them over and above the estimated value of the estates; that all the rights and equities of redemption, or other rights of the defendant as executor and trustee to the mortproperty, should thenceforth be gaged wholly barred, extinguished, and discharged, and the mortgagees should become absolute owners, both at law and in equity, of the mortgaged estates; and that the covenants sued on should be satisfied and discharged in consideration of the premises. The plea averred payment to each of his share of the assets, and that the several rights and equities of redemption were barred and extinguished. The judge having ruled that the plea could not be proved, except by an agreement in writing :-Held, that although an agreement to convey an equity of redemption must be in writing, this plea would have been good, even though it had expressly stated the contract to have been by parol, inasmuch as the agreement by the plaintiff to forgo the balance of his mortgage beyond the value of the estate, upon receiving his share of the assets, was binding on him, and the receipt of his share of the assets was a satisfaction for the estate, because the agreement of the other mortgagees to take their shares of the assets also was a good consideration for giving up the claim for the residue of the debt against the defendant. Massey v. Johnson, 1 Ex. 241; 17 L. J., Ex. 182.

The withdrawal by a defendant of a plea of infancy, whether true or false, is a sufficient consideration for an agreement on the part of the plaintiff to accept a smaller in satisfaction of a greater sum. Cooper v.

Parker, 15 C. B. 822; 3 C. L. R. 710; 24 L. J., C. P. 68; 1 Jur. (N.s.) 281; 3 W. R. 245-Ex. Ch.

To refer to Arbitration.]-Matters in difference existing between the plaintiff and the defendant, some of which were the subject of an action, it was agreed between them, that in consideration that the defendant would consent to refer to arbitration the matters of the action, the plaintiff would accept such agreement in satisfaction of all damages sustained by him in respect of the other matters-Held, that the agreement and its performance were a bar to an action in respect of the last-mentioned matters. Williams v. London Commercial Exchange Co., 10 Ex. 569.

Agreement to Purchase under Land Clauses Act.]-A company obtained parliamentary powers to make a railway cutting through a private owner's land, and for that purpose they entered into an agreement under the Lands Clauses Act, 1845, s. 6, to purchase part of his land; and it was also agreed that the purchase-money should be taken in full compensation for all damage by severance and injury to the adjoining lands (if any) of the owner, and also for injuriously affecting such lands. Deeds of conveyance of the lands taken were afterwards executed. His houses on the adjoining land suffered structural injury from subsidence of the land consequent upon the excavations in accordance with the deposited plans, and he obtained against the company an assessment by inquisition under the Lands Clauses Act, 1845, s. 68, and afterwards brought an action to recover the amount of the assessment and the costs of the inquisition; to which the company pleaded satisfaction and discharge under the agreement :-Held, that the agreement covered the injury complained of, although possibly caused by the construction of the works on land other than that purchased from him. Todd v. Metropolitan District Ry., 24 L. T. 435; 19 W. R. 720.

Performance Rendered Impossible.]-To an action by indorsee against maker of a note, he pleaded that the note was made by himself and E., his partner; and that, whilst the plaintiff was the holder of the note, the defendant and E. delivered to him nineteen signed bills of costs, which were referred to taxation; that it was agreed that the balance found due from the plaintiff to the defendant and E. on such taxation, should be applied in part payment of the note, and that the balance of the note, with interest, should be secured by a judgment payable at certain periods, which had elapsed before action; that the taxation was still pending, and the balance not ascertained, and that the defendant and E. had always been ready and willing to apply the balance due to the defendant towards the payment of the note, and on the completion of the taxation to receive the balance due on the note by a judgment in accordance with the agreement: -Held bad, as even supposing it to be a good agreement to suspend the remedy, the lapse of time showed the performance of it

to be impossible. Carter V. Wormald,

5 D. & L. 731; 1 Ex. 81; 16 L.J., Ex. 231. 1 Action on Note-Forbearance-Quarterly Payments.]-Action on а note for £140, payable twelve months after date, and on

a

note for £200, payable two years after date. Plea, that after the notes became due, it was agreed between the plaintiff and the defendant and A., that A. should and would, at the request of the plaintiff, pay to the plaintiff in trust for B. £200 for her own sole use and benefit, or £25 per annum so long as the £200 should remain unpaid, which £25 should be paid quarterly; and that the rights and causes of action of the plaintiff upon and in respect of the notes should be suspended so long as A. should continue to pay £6 5s. every quarter; and that A. paid the £25 quarterly, according to the agreement :-Held, that in order best to effectuate the intention of the parties, the agreement must be construed to mean that the plaintiff agreed to forbear his suit until the quarterly payments should cease to be made; and that the legal effect of such agreement was, not to suspend the plaintiff's right of action upon the notes in the meandamages in the event of his suing contrary time, but to subject him to an action for to the agreement; and therefore the plea was no bar. Ford v. Beech, 5 D. & L. 610; 11 Q. B. 852; 17 L. J., Q. B. 114; 12 Jur. 310-Ex. Ch. S.C., 7 Hare, 208.

Damage Previous Action in Respect of.] -The withdrawal of any part of the stratum to the support of which the owner of the adjacent soil or house thereon is entitled, is a cause of action, as an injury to the right, although no immediate damage ensues; and no fresh cause of action accrues by the Occurrence of subsequent damage. And, therefore, to an action for damage caused by such withdrawal, it is a good answer that a prior action has been brought for damage consequent upon the wrongful act, and an accord and satisfaction agreed to and performed between the parties. Nicklin v. Williams, 10 Ex. 259; 2 C. L. R. 1304; 23 L. J., Ex. 335.

Wrongful Act-Conduct.]-When a wrongful act has been completed without the knowledge or assent of the party injured, his right of action is not ordinarily barred by mere submission to the injury, or even by a voluntary promise not to seek redress; some conduct amounting to release or accord and satisfaction must be shown: although, on account of laches, relief may be refused under special circumstances. De Bussche v. Alt, 47 L. J., Ch. 381; 8 Ch. D. 286; 38 L. T. 370.

or any person to whom he might indorse the bill and deliver the scrip, for or in respect of the scrip, should be taken to be in satisfaction pro tanto of the bill; that the plaintiff took the bill with notice of the agreement, and that while he held the bill upon these terms W. delivered to the plaintiff the scrip upon and subject to these terms; that W. indorsed the bill to the plaintiff after it became due, and the plaintiff received it upon and subject to the same terms; that the plaintiff had received in respect of the scrip a sum equal to the amount of the bill and all damages; and that the sum was thereupon accepted in satisfaction. The plaintiff replied, that the scrip was not delivered to or received by W. upon the terms alleged. The defendant gave in evidence a memorandum, signed by W., and dated the same day as the bill, stating that the defendant has this day deposited with me 220 shares in the H. Railway, as a collateral security for the due payment of his acceptance :-Held, that the evidence supported the plea. Malpas v. Clements, 19 L. J., Q. B. 435.

To an action on a note for £150, the defendant pleaded that A., being indebted to the plaintiff in £3,612 10s., it was agreed that the plaintiff should accept £1,500 in satisfaction, and that the defendant should deliver the note to the plaintiff in part payment; and that he should not enforce payment of the original debt; that A. afterwards became bankrupt, and that the plaintiff, in violation of the agreement, proved for the original debt :-Held, that the plea was not proved by an agreement, that, upon giving £350 down, and a bond of other parties for £1,000, and the note, A. should be released from the original debt. Gillett

V.

Whitmarsh, 8 Q. B. 966; 15 L. J., Q. B. 291; 10 Jur. 904.

A plea to an action for a debt, that the plaintiff drew, and the defendant accepted, a bill of exchange for £60, in satisfaction of the plaintiff's demand, is not supported by evidence that the defendant transmitted to the plaintiff a blank acceptance, with £60, in figures, written in the margin, which the plaintiff altered, and filled up as a bill for £46, before he signed his name to it as drawer. Baker v. Jubber, 1 Man. & G. 212; 1 Scott (N.R.) 26; 8 D. P. C. 539. To an action for goods the defendant pleaded, that he was possessed of a public house, and it was agreed that, in consideration that the defendant would give up possession, the plaintiff would pay to the defendant £100, and discharge him from the debt, that the plaintiff paid the £100, and the defendant quitted the house. The agreement was not in writing :-Held, that, having been executed, it was receivable as evidence to prove the plea. Lavery v. Turley, 6 H. & N. 239; 30 L. J., Ex. 49.

In an action to recover the amount of a bill of sale, after breach of a warranty to defend the goods against all persons whatsoever, evidence that the amount secured by the bill has in fact been received since the breach cannot be admitted in the absence

of a plea of payment, or of accord and satisfaction. Horsley v. Cox, 15 L. T. 391.

Contract to be performed in futuroAlleged New Contract-Lapse of Time.]The lapse of twenty years from the time of making a contract, to be performed in futuro, is not of itself evidence of a new contract averred to have been performed, and pleaded as an accord and satisfaction of the original contract. Siboni v. Kirkman, 1 M. & W. 418; 1 Tyr. & G. 777; 5 L. J., Ex. 212.

Evidence of-Cheque sent "in full of all demands."]-The mere keeping of a cheque sent in full of all demands is not conclusive evidence from which an accord and satisfaction is to be presumed in law; the question whether it has been kept upon the terms upon which it has been sent being one of fact in each particular case. Day v. McLea, 58 L. J., Q. B. 293; 22 Q. B. D. 610; 60 L. T. 947; 37 W. R. 483; 53 J. P. 532-C.A.

Cheque sent "to Balance Account" -Cheque retained account" and cashed.]-A. sent B. a cheque to balance account, as per inclosed statement." The inclosed statement debited B. with a sum claimed on account of defects in work done. B. replied acknowledging the receipt of the cheque on account," and shortly afterwards sent A. a statement of account,

same.

omitting the sum claimed by A. for defective work, and debiting A. with a small sum for discount not allowed in his account, and in the accompanying memorandum said: We would thank you for a remittance of the balance, or we shall be obliged to take proceedings to recover A. replied, sending a cheque for the discount claimed. B. kept and cashed the cheques. action for the balance B. was nonsuited on the ground that, having taken and cashed the first cheque, he was bound to apply it according to A.'s intention :-Held, that the Ackroyd v. Smithies,

nonsuit was wrong.

54 L. T. 130; 50 J. P. 358.

In an

Receipt Annexed to Cheque.]—The defendants, who were tobacco manufacturers, agreed with their customers to distribute among them annually for four years, from April, 1902, their entire net profits on goods sold by them in the United Kingdom and in addition the sum of £50,000 each quarter in proportion to their purchases. The defendants paid the first quarterly bonus, and before the time for the second distribution arrived they sold their business and went into voluntary liquidation. They paid the second bonus to each customer by means of a cheque upon a banker, which was signed by the defendants and the liquidator, the cheque being stated as sent as the customer's share of the second and final bonus distribution. The cheque was payable to the customer or order, and at the foot were the words: "The receipt at back hereof must be signed, which signature will be taken as an endorsement of this cheque.' On the back were the words: "Received from Mr.