The Digest OF ENGLISH CASE LAW. 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. bers v. Betty, Beat. 488. carry the original agreement for partition into 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. Specific Performance.]-If the purchaser demand his deposit at the day for completing the contract, and the vendor has not delivered his abstract before that time, and also neglect 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 Î. 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 1507., with an Cham-option upon the part of A. to have a lease at the expiration of the term, at the yearly rent of 120l., 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 1507., and 45l. 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 1501. A. wrote in reply, returning the draft lease, declining to accept the same, and stating that he considered himself as yearly tenant at the rent of 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 VOL. I. 1 1201., and demanding the return of the deposit. | L. J., P. 36: 11 P. D. 103; 54 L. T. 906; 34 Upon a bill filed by B., for specific perform- W. R. 446; 50 J. P. 276—C. A. ance-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 1,0007. for A.'s use, and pay off two mortgages on his estate. In consideration of 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 elapsed without any further steps being taken to carry the agreement into effect, and A. died :-Held, that the agreement must be considered as abandoned, and that it could not be enforced. Cubitt v. Blake, 19 Beav. 454. See also CONTRACT (DISCHARGE)-VENDOR AND PURCHASER. 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 had 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 parte 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 v. Walton, 2 Y. & C. C. C. 354; 7 Jur. 892. The inference of an abandonment of a right from a non-user, not applicable to the case of mines. Seaman v. Vawdrey, 16 Ves. 392; 10 R. R. 207. Of Proceedings.]-See PRACTICE. Of Easement.]-See EASEMENT. Of Notice to Treat.]-See LANDS CLAUSES ACT. Of Lien.]-See LIEN. Of Railway.]-See RAILWAY. Effect of Waiver and Laches.]-See WAIVER. Death of Parties in Actions.] See PRACTICE (PARTIES). Of Rent.]-See LANDLORD AND TENANT. Of Purchase Money.]-See VENDOR ABDUCTION, See CRIMINAL LAW. ABORTION. See CRIMINAL LAW. AND ABSCONDING DEBTOR. See DEBTORS' ACT, ABSTRACT OF TITLE. See VENDOR AND PURCHASER. ACCESSORY. See CRIMINAL LAW. ACCIDENT. Caused by Act of God]-See ACT OF GOD. ACCORD AND SATIS FACTION. A. GENERALLY. B. BY PAYMENT.-See PAYMENT. A, GENERALLY. Accord 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. (0.s.) K. B. 16. See Collingbourne v. Mantell, 5 M. & W. 289; 7 D. P. C. 518; 8 L. J., Ex. 251. An agreement for an accord and satisfaction is not enforceable by action, and if it be not performed the original debt revives. Reeres 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 ba, 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. tiff, 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 or an 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. To an action for infringing a patent, the 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 defendant 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. 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 To an action by payee against acceptors of two forthwith cancelled and delivered up to the bills, they pleaded that before the bills became association, which should thereupon be exone- due, and before the delivery to the plaintiff, it was rated and discharged from the insurances, and agreed between him through the drawers, as his that the premiums thereupon paid or payable by agents, and the acceptors and A., that in conthe defendant, or a rateable proportion thereof, sideration of them and A. paying the drawers after deducting so much as would be fairly pay- 5007. in settlement of accounts, the plaintiff would able in respect of risks already incurred, should accept a dividend of 2s. 9d. in the pound on these be allowed in account to the defendant, and set and other bills accepted by the defendants and off against the moneys due from the defendant to A., and within one month would deliver up the the association, and that the defendant there- bills, receiving the dividend on each acceptance; upon should be acquitted, exonerated, and dis- that a place of tender of the composition was charged from the payment of so much of the agreed upon, and a penalty of 5001. agreed to be moneys as the premiums so to be allowed should paid on default on either side; that the defendants amount to. The plea stated that the amount of and A. paid to the drawers, and they accepted, premium so to be allowed was a certain sum, the 5007. in settlement, and the defendants and and averred that, in pursuance of the agreement, A. tendered the dividend, of all which the plainthe defendant delivered up the policies, and that tiff had notice; that the plaintiff refused to they were cancelled, and that the defendant was accept the dividend, and failed to deliver up the in consequence thereof exonerated and discharged acceptances:-Held, that the plea was bad in from the payment of that sum :-Held, that the substance, as it contained no allegation that plea was bad in substance; for, that the agree-the agreement to accept the dividend was taken ment 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 plain 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 a contract for the delivery of 600 loads of timber at Dantzic, the defendant pleaded that before action, it was agreed that he should deliver to the plaintiff, in London, other Webb v. Hewitt, 3 Kay & J. 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. timber, and that such other timber should be the agreement. 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 nor 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. 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. To a declaration alleging a breach of an agreement therein set forth, and consequent damage to the plaintiffs, it was pleaded that a certain agreement had been come to between the plaintiffs and defendants after disputes had arisen. The plea did not in terms admit or deny the alleged breach; nor did it in terms state that the agreement pleaded had been accepted by the parties in accord and satisfaction of the causes of action alleged in the declaration :— Held, that such plea was bad. It could not be assumed that an agreement, the defendant's version of which was set out in the plea, had been accepted in accord and satisfaction. Barclay v. Bank of New South Wales, 5 App. Cas. 374; 42 L. T. 196-P. C. Delivery of Security.]-Shares in a company were deposited by B. with A., to be sold by A. in case B. neglected to provide for two bills accepted by A. for B.'s accommodation. B. having failed to provide for the bill, A. sold the shares, and gave notice of that fact to B., who refused to execute a transfer to the purchaser. In an action by A. to recover the amount paid by him to take up one of the bills, B. pleaded in bar the deposit and sale of the shares. Upon an issue taken on this plea :-Held that B. was entitled to the verdict, notwithstanding his refusal to give effect to the sale by executing a transfer. Ross v. Moses, 1 C. B. 227. See Cannan v. Read, 10 L. J., C. P. 242. To a plea of accord and satisfaction by the delivery by the defendant to the plaintiff and acceptance by him of moneys, deeds, and securities for money, and allotting him shares in a company, an equitable replication as to the deeds and securities, that such deeds and securities were accepted by the plaintiff on the faith of a representation by the defendant that they were valid and binding securities, whereas they were not valid and binding on the company, and were before action repudiated by the company, is good. Stears v. South Essex Gas Co., 9 C. B. (N.S.) 180; 30 L. J., C. P. 49; 7 Jur. (N.S.) 447 ; Proceedings on Bond.]-To an action on a bond, the defendant pleaded that before breach, M. and others, as his sureties, executed and delivered another bond in satisfaction and discharge of the bond in the declaration, and of all covenants therein contained, and that the plaintiff accepted the bond in satisfaction and discharge of the bond in the declaration, and of all covenants :-Held, that the plea was not good, either by way of accord and satisfaction or release. Berwick-upon-Tweed Corporation v.3 L. T. 472; 9 W. R. 533. Oswald, 1 El. & Bl. 295; 22 L. J., Q. B. 129; 17 Jur. 1148. S. P., Petre v. Stubbs, 3 W. R. 406. To an action on a bond conditioned for payment of money, the defendant pleaded, that after the day of payment the obligee received certain bills of exchange not yet due, on account of part of the sum due on the bond, and certain moneys in satisfaction of the residue :-Held, that the plea was no answer. Worthington v. Wigley, 3 Bing. (N.C.) 454 ; 3 Scott, 558; 5 D. P. C. 504; 1 Jur. 183. 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 Contract by Creditor to take less than sum due.]-An agreement between judgment debtor and creditor that, in consideration of the debtor paying down part of the judgment debt and costs, and on condition of his paying to the creditor or his nominee the residue by instalments, the creditor will not take any proceedings on the judgment, is nudum pactum, being without consideration, and does not prevent the creditor after payment of the whole debt and costs, from proceeding to enforce payment of the interest upon the judgment. Pinel's Case (5 Rep. 117 a), and Cumber v. Wane (1 Str. 426) followed. Foakes v. Beer, 54 L. J., Q. B. 130; 9 App. Cas. 605; 51 L. T. 833; 33 W. R. 233 -H. L. (E.) If a debtor by paying part of his debt obtains from his creditor an agreement to discharge the residue, such an agreement is nudum pactum and totally inoperative. Cumber v. Wane, 1 Str. 425. Payment of part of a debt with an agreement | showing an agreement under seal; that the nonto forbear the rest is void on account of the payment of the first instalment due under the want of consideration. Overton v. Bannister, 3 award was a breach of the whole contract to Hare, 503; 8 Jur. 906. perform the award, and that the plea was thereAcceptance of a less sum cannot be a satisfac- fore an answer to the action by way of accord tion in law of a greater. Fitch v. Sutton, and satisfaction, the agreement being the pay5 East, 230; 1 Smith, 415. ment of a smaller sum at an earlier day; and that the payment of the instalment on the 19th of April having been accepted as payment by the plaintiff on the 14th was a performance of the agreement. Smith v. Trowsdale, 3 El. & Bl. 83; 2 C. L. R. 874; 23 L. J., Q. B. 107; 18 Jur. 552. A promise to release arrears and future payments of alimony is not supported by a consideration of a sum less than the arrears. Cumber v. Wane (1 Str. 426) and Foakes v. Beer (9 App. Cas. 605), followed. Underwood v. Underwood, 63 L. J., P. 109; [1894] P. 204; 6 R. 604; 70 L. T. 390; 42 W. R. 372-C. A. A plea, alleging the acceptance of a less sum in satisfaction of a larger sum, will be bad after verdict. Down v. Hatcher, 10 A. & E. 121; 2 P. & D. 292; 8 L. J., Q. B. 190; 3 Jur. 651. So, where a defendant pleaded a payment in discharge and satisfaction, and the plaintiff replied a writ sued out before such payment; the plea held bad, because it did not allege the payment to have been made in discharge of the costs and damages as well as of the promises, and it appeared upon the record that the plaintiff had still a cause of action unsatisfied. Francis v. Crywell, 1 D. & R. 546 ; 5 B. & Ald. 886. But see Corbett v. Swinburne, 3 N. & P. 551; 8 A. & E. 673; 7 L. J., Q. B. 215. Payment of a smaller sum, with an agreement to abandon a defence and pay costs, may be pleaded in satisfaction of a larger demand, whether liquidated or unliquidated. Cooper v. Parker, 15 C. B. 822 ; 3 C. L. R. 823; 24 L. J., C. P. 68; 1 Jur. (N.S.) 281 ; 3 W. R. 245-Ex. Ch. Held, secondly, that the day of payment was immaterial, and therefore, the performance of the agreement stated in the plea was proved. b. Acceptance of Negotiable Security.]—The delivery and acceptance of a negotiable security in satisfaction and discharge of an existing debt, is a good accord and satisfaction, although such acceptance is for a less amount than the debt. Sibree v. Tripp, 15 M. & W. 35; 15 L. J., Ex. 318. To an action for 401. for goods, the defendant pleaded, except as to 107. and 97. 158. 4d., parcel, &c., that the debts, except as to 91. 15s. 4d., accrued to the plaintiff for clothes delivered to the defendant; and in consideration that the defendant would deliver to the plaintiff a blank acceptance of his for 251. he would discharge the defendant from all claims for clothes, if the acceptance should be paid in six months, and if it should not be paid within that time the defendant should be liable to pay the plaintiff 107. only, that the defendant delivered the acceptance, and that the same was not paid within six months, whereby the defendant became liable to pay 101. only (which sum he paid into court) :Held, a good plea of accord and satisfaction. Curlewis v. Clark, 3 Ex. 375; 6 D. & L. 455; 18 L. J., Ex. 144. Where to an action by assignees of a bankrupt to recover 1,000l. received by the defendant before the bankruptcy, he pleaded that, on an account stated between him and the bankrupt, before the bankruptcy, the former was found to be indebted to the bankrupt in 4007., for which the bankrupt drew a bill of exchange upon the defendant, payable to him or his order, which he accepted for and on account of the debt, and returned it to the bankrupt :-Held, that the plea was no answer, as it was pleaded to the whole of the demand, and giving a bill for 4007. was not a legal satisfaction of 1,000l., being the amount of the debt claimed. Thomas v. Heathorne, 3 D. & R. 647 ; 2 B. & C. 477. Payment of Smaller Sum on Earlier Day.]-A declaration stated an agreement under seal, between the plaintiff and the defendant, by which, after reciting a contract for the execution by them, as partners, of certain works, and that disputes had arisen relating to their partnership, and that the plaintiff had consented to retire from the partnership upon terms to be ascertained by arbitration, it was agreed that the parties should abide by and fulfil the award of the arbitrators or umpire; and that the umpire afterwards awarded that the defendant should pay to the plaintiff 5,0037. by instalments, viz. 2,0007. on the 1st January, 2,0007. on the 1st April, and 1,0037. on the 1st July. Breach nonpayment of a part of the sum so awarded. Plea, that after breach in nonpayment of the first instalment, but before any further instalment became due, it was agreed that the defendant should not assist B. in establishing a partnership with the plaintiff in the recited con- A.. being indebted to B. in 1257. 78. 9d. for tract, and that the defendant should pay and the goods sold and delivered, gave B. a cheque for plaintiff accept 4,5007. by instalments, all of 1007. payable on demand, which B. accepted in which were to become due before the day on satisfaction :-Held, a good accord and satisfacwhich the last instalment was to become due, in tion. Cumber v. Wane (Stra. 426), and Sibree full satisfaction and discharge of the sum awarded| v. Tripp (15 M. & W. 23), observed upon. Godand of the breach of the award, and that the dard v. O'Brien, 9 Q. B. D. 37; 46 L. T. 306; plaintiff accepted the agreement and its perform-30 W. R. 549. ance by the defendant in full satisfaction and discharge. The plea stated payment of these instalments on the day specified, and that the plaintiff accepted the 4,500l. and the payment thereof by the instalments. The agreement in the plea was not under seal, and one of the instalments was paid on the 19th instead of the 14th of April, the day specified :—Held, that the action being not upon the submission but upon the award, the plea could be sustained without When Creditor's rights only Suspended— Bill not negotiated.]—Action for goods sold. Plea, as to 91. 158. 94d., that the defendant drew upon a piece of paper an instrument purporting to be a bill of exchange, without a drawer's name, whereby he was required to pay to such person, or his order, who should place his name thereto as drawer, 201., two months after date; which instrument the plaintiff requested the |