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*Lane v. Ridley, 10 Q. B. 479 (E. C. L. R. vol. 59), was to *192] the same effect as Reynold v. Blackburn, Purssord v. Peek, and Pascoe v. Vyvyan, 1 Dowl. N. S. 939, viz. that, where the plea is double, it is no objection that the replication is also double.

Reference has thus been made to the several cases which were cited, with some regret, as the only result is, to show that they are inapplicable to this case, and afford no assistance to the court in determining the question raised upon the record; and, in fact, no determination has been brought to the notice of the court, showing this plea to be good, although there are some expressions in some of the older cases which have that aspect, but which dicta were not necessary to the decision of the cases in which they are to be found; and such dicta are not consistent with subsequent determinations. It certainly has been no rare practice for endorsees of bills of exchange and promissory notes, to take verdicts for the full amount of the instruments, after having received partial payments from other parties to such instruments: and there are reported authorities in distinct affirmation of the right so exercised by the plaintiffs,-Callow v. Lawrence, before mentioned, Reid v. Furnival, 1 C. & M. 538,† and numerous cases in bankruptcy, where proof is admitted against the acceptors of bills and makers of notes, for the full amount, notwithstanding partial payments made by other parties. In Ex parte De Tastet, in re Corson, 1 Rose, 10, Warren and Bruce were held entitled to prove against the estate of the bankrupts, who were the acceptors, for 13647., and take dividends for that amount, notwithstanding they had received payments from other parties, reducing their demand to 4201.

We think, therefore, that this plea is contrary to principle, and that it has no authority to support it.

record the legal owners of the failed to perform his contract, The defendant was the party

*The plaintiffs stand upon the *193] bill, and the defendant as having without any legal excuse for the breach. primarily liable, and, by his plea, he sets up, by way of discharge, satisfaction by one not in privity with him in relation to such satisfaction, and which we think did not enure to his discharge; and we think the plea, therefore, bad, and the plaintiffs entitled to judgment, as prayed. Upon the argument of this case, we were much pressed with the objection to the plea upon the ground that it was, in effect, a plea of satisfaction by a stranger; which, it was said, was bad in law. The opinion of the court upon the other objections to the plea, being in favour of the plaintiffs, it has become unnecessary to decide upon the validity of this particular objection. But, as the court has been called upon to consider the law in relation to this subject, it may be a convenience to the profession to mention the authorities which are to be found upon the subject.

It may appear that the law is not perfectly settled. The authorities

of the text-books are generally to be found under the title of "Accord and Satisfaction ;" and most, if not all, of such text-books, refer to accord and satisfaction by and between the parties to the cause of action, and but very few authorities are to be found upon the subject of satisfaction made by a stranger. Notwithstanding the passages referred to in the text-books, there is very early authority to the effect that satisfaction made by a stranger to a party having a cause of action, and adopted by the party liable to the action, may be used as a good bar to an action for such cause. It is stated in Fitzherbert's Abridgment, (a) that, "If a stranger does trespass to me, and one of his relations, [*194 *or any other, gives anything to me for the same trespass, to which I agree, the stranger shall have advantage of that to bar me; for, if I be satisfied, it is not reason that I be again satisfied. Quod tota curia concessit." A very diligent search has not found any old authority inconsistent with the case in Fitzherbert. In several cases obligations given by strangers to parties having a cause of action, have been held. to be no bar to an action between the parties to such a cause: but it will be found that all those cases were decided upon the ground that the obligation, so given, was collateral, and not by way of satisfaction, or in extinguishment or merger. In connexion with this branch of the law, this consideration will always be found material.

In Fitzherbert's Abridgment, title Dette, pl. 83, it is said: "In debt on contract, it is no plea to say that the plaintiff has a bond of a stranger, for the same duty; but, to say, that he has a bond of the defendant himself for the same duty, is a good plea."(b) So, in F. N. B. 121 M., it is said "If a man contract to pay money for a thing which he hath bought, if he make a bond for the money, the contract is discharged, and an action of debt will not lie upon the contract." "But(c) it is otherwise if a stranger makes an obligation for the same debt." 5 Viner's Abridgment, 515, is to the same effect; also Brooke's Abridgment, title Contract, pl. 29. In *Pudsey's case, cited in Hooper's case, 2 Leonard 110, it was held, that a bond given by a stranger, [*195 pursuant to a stipulation in the original contract, will be a bar; but, otherwise, upon a subsequent contract." The same point was decided in the principal case of Hooper.

of satisfaction by a stranger,

Some doubt has arisen upon the point from the case of Grymes v. Blofield. (d) The report in Cro. Eliz. states

(a) Title Barre, pl. 166 (Hilary, 36 H. 6). And see Co. Litt. 206 b.

(b) Per SHARD. (SHARDELOW, J.), 29 H. 8, Bro. Contract, pl. 29:—“ If a man be indebted to me by contract, and afterwards makes to me a bond of the same debt, the debt is thereby determined; for, in debt upon the contract, it is a good plea, that he has a bond of the same debt. But, if a stranger makes to me a bond for the same debt, still the contract remains; because it is by another person; and both are now debtors."

(c) Lord Hale's note, ib., citing Fitz. Abr., H. 35 E. 3, Dette, pl. 83; and referring to 11 H. 4, fo. 79 (Raufe Baker's case, T. 11 H. 4, fo. 79, pl. 21); 13 H. 4, fo. 1 (M. 13 H. 4, fo. 1, pl. 3); 10 H. 7, fo. 21 (P. 10 H. 7, fo. 21, pl. 16).

(d) Reported in Cro. Eliz. 541, and in Rolle's Abridgment, 471 (translated, 5 Vin. Abr. 296, Condition (F d), pl. 1, and in Comyns's Digest, Accord (A 2), 5.) And see M. 28 H. 6, fo. 4, pl. 21.

VOL. IX.-10

it to have been an action on an obligation for 201. The defendant pleaded that J. S. had surrendered a copyhold tenement, in satisfaction, which the plaintiff accepted. The plaintiff demurred to the plea; and it is said that POPHAM and GAWDY, JJ., held it to be no plea, for J. S. was a mere stranger, and not privy to the condition, and therefore satisfaction by him was not good; and that afterwards, in Easter term, 31 Eliz., POPHAM and CLENCH adjudged for the plaintiff, in the absence of the rest of the justices. In Comyns's Digest, the case is stated to the same effect. But, from the report of the same case in Rolle's Abridgment, it is to be inferred that judgment was given for the defendant.

In the case of Edgcombe v. Rodd, 5 East, 294,-which was an action for trespass and false imprisonment, to which satisfaction by another party was pleaded (upon the authority of Grymes v. Blofield), accrediting the report in Cro. Eliz., because cited in Comyns without disapprobation, the court seems to have thought the plea bad, as setting up satisfaction by a stranger. In Edgcombe v. Rodd, however, the plea was held to be bad upon another substantial ground, upon which the judgment rather seems to have been founded.

*The rolls of the court have been searched, to ascertain the *196] real state of the case of Grymes v. Blofield: but without much satisfaction being obtained. There are three rolls, importing three distinct actions upon three obligations for 207.; and, in each case, a plea of satisfaction by J. S. by the surrender of a copyhold. The rolls are of Trinity term, 36 Eliz., B. R. No. 844, No. 845, No. 846. On the roll 844, the plea was demurred to, and a joinder in demurrer, with a dies datus to Michaelmas term; and there is no further entry upon that roll. Upon the roll 845, the pleadings are to the same effect, with a form of a dies datus in blank, and no further entry upon that roll. Upon the roll 846, there is a declaration and plea to the same effect as in the other rolls, with a replication traversing the surrender of the copyhold in satisfaction, and the acceptance. Issue was joined, and the cause tried, and a verdict found for the plaintiff, which was entered upon the postea. There is then an entry that a new trial was granted, upon the ground that the venire had issued to a wrong county; and a new venire awarded; and there the entry upon that roll ceases.

Upon further inquiry being made, there has been found a report of the case in the MSS. reports in the British Museum, in the Hargrave MSS. No. 7, Vol. 2, p. 251, reports by Humphry Were. The case is reported, in substance, as in Cro. Eliz., referring to the roll in B. R. (Trinity term, 36 Eliz.) 844; and it states that FENNER, J., doubted of the opinion of POPHAM and GAWDY, by reason of the acceptance of the plaintiff, and cites the 36 H. 6, title Barre, (a) which is the case referred to in Fitzherbert's Abridgment:(6) and it *afterwards (a) 36 H. 6, Fitz. Abr. Barre, pl. 166.

*197]

(b) The reference by FENNER, J., is in the form at that time and long since used in citing Fitz. Abr.

states, that, upon the case being moved again, CLENCH and FENNER agreed that the plea was a good bar; and that GAWDY said the case of Trespass, 36 H. 6, (a) was good law: and the report then states, that, in Easter term, 39 Eliz., the plaintiff had judgment to recover,-POPHAM and CLENCH only being in court.

There is another report of the same case in the Hargrave MSS., No. 50, in a book said to have been given, in 1618, by Arthur Turnour to Serjeant Calthorpe, in exchange for other books: but that report does not state any judgment to have been given.

In the Lansdowne MSS. in the British Museum, No. 1104, fo. 152 b,being a report of cases from the 6th to the 41st year of Elizabeth, the same case is reported, stating a judgment for the plaintiff; and the report being precisely to the same effect as in the Hargrave MSS.

It appears that Humphry Were was, at a somewhat later period, a reader to the Inner Temple, and afterwards a serjeant.

It seems probable that the report in Croke, stating the judgment to have been given for the plaintiff, is correct; although no answer is suggested to the authority of the 36 H. 6, which seems contrary to the decision, and to have been referred to.

In Thurman v. Wild, 11 Ad. & E. 453 (E. C. L. R. vol. 39), 3 P. & D. 289, the question as to the effect of satisfaction by a stranger, also arose; and the court seemed to recognise the decision of Grymes v. Blofield as correct; but held that the satisfaction pleaded in that case was a good bar, because made by one who was not a stranger, but a joint trespasser; and it therefore became unnecessary to decide how far satisfaction by a stranger would have been a good bar.

*Such seems to be the state of authority upon that question: and the court does not feel called upon to express any opinion [*198 upon the point, although it must be obvious that the decision in the 36 H. 6, reported in Fitzherbert, is consistent with reason and justice.(b) The court, in this case, is of opinion that the plea is bad upon other

(a) Not a case in title " Trespass,” but the above case of an action of trespass reported in Fitz. Abr. tit. Barre, pl. 166.

(b) Lord Bacon, in the preface to his Rules and Maxims, says that he might have made an ostentation of learning, by vouching authorities, but that he abstained from it, "having the example of Mr. Littleton and Mr. Fitzherbert, whose writings are the Institutions of the Laws of England, whereof the one forbeareth to vouch authority altogether, and the other never reciteth a book but when he thinketh the case so weak of credit in itself, as it needs a surety."

What Bacon here says relates to Fitzherbert's Naturą Brevium. Fitzherbert's Abridgment rests wholly on authorities either taken from the Year Books, or from original cases now nowhere else extant. To the latter class belongs the case 36 in H. 6, above referred to. Another case of the same class in Fitz. Abr., M. 33 E. 1, tit. Annuitie, pl. 51, is to this effect:-"Annuity against heir, upon a deed of grant made by his father until the defendant (the plaintiff) should be advanced to a suitable (covenable) benefice. Tilton. After the death of our father, our mother gave to the plaintiff, at our procurement, and in our discharge, the deanery of T. of which the plaintiff is now seised. Herle.-The writing is, until he be advanced by the grantor or his heirs.' Hengham.—Qui per alium facit, per seipsum facere videtur, and awards that he answer over. Herle.-The mother of the defendant gave us the deanery for our service, and not in discharge of the annuity: and this he is ready to verify. Et alii e contrà."

grounds; and it is therefore unnecessary further to investigate the general point referred to.(a) Judgment for the plaintiffs.

(a) As to which, see Roe v. Haugh, 1 Salk. 29; Buckmyr v. Darnall, 2 Ld. Raym. 1085, 1087; Anstey v. Marden, 1 N. R. 124, 128; Ayrey v. Davenport, 2 N. R. 474, 476; White v. Cuyler, 1 Esp. N. P. C. 200, 6 T. R. 176; Drake v. Mitchell, 3 East, 251. See the distinction in the Civil Law between the engagement of an expromissor and that of an adpromissor, Vinn. Inst. Imp. Comm. lib. 2, tit. 1, De Rerum Divisione, &c., p. 155; Ibid., lib. 3, tit. 1, De Fidejussoribus, p. 726; Ibid., lib. 4, tit. 6, § 9, De Constitutâ Pecuniâ, p. 887.

When suits are brought against the maker and endorser of a promissory note, and the endorser pays the amount: and it is agreed between the holder and the endorser that the suit against the maker shall be prosecuted for the benefit of the endorser, the maker cannot avail himself of the payment by the endorser as a defence in the suit against him: Mechanic's Bank v. Hasard, 13 Johnson, 353. It is no defence to an action on a promissory note that the property of the note is in a third person, unless the possession of the plaintiff is mala fide: Guern

sey v. Burns, 25 Wendell, 411; Pearce v. Austin, 4 Wharton, 489.

The payment of a debt by one not a party to the contract, is an extinguishment of the demand, whether made with the assent of the debtor or not: Harrison v. Hicks, 1 Porter, 423. See contra Clow v. Borst, 6 Johnson, 37; Stark v. Thompson, 3 Monroe, 302. But it is held in the last case to be a good cause for an injunetion and relief in equity. See also Daniels . Hallenbach, 19 Wendell, 408; Woolfolk M'Dowell, 9 Dana, 268.

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*199]

*BUTLER v. FOX. Jan. 31.

The Court discharged so much of an order for a commission to examine witnesses, as stayed the proceedings, on the ground of an unreasonable delay in the application.

ASSUMPSIT on a sea-policy for 5000l., on wheat, free of average, the question being, whether the loss was total or partial. The action was commenced on the 13th of November, 1847, and issue was joined on the 12th of February, 1848. On the 28th of March, 1849, a commission issued, to examine witnesses at Baltimore, both parties joining in it. The defendant being induced by letters from Baltimore to think he might get additional evidence at New York, obtained an order for the examination of witnesses at the latter place.

Byles, Serjt., on a previous day in this term, obtained a rule nisi to set aside that order, or so much thereof as directed that the proceedings should be stayed in the mean time, on the ground that the defendant had been guilty of laches.

James Wilde, who showed cause, submitted that, seeing the length of time the cause had been pending, the defendant's delay in applying for the second commission was not so unreasonable as to disentitle him to have his commission with all its usual incidents,-the delay having only been of twenty days.

Byles, Serjt., in support of the rule, observed that the delay amounted to the whole time necessary for a voyage between London and America. *WILDE, C. J.-The court is of opinion that the rule should *200] be made absolute to discharge so much of the order of my brother TALFOURD as stays the proceedings,—but without prejudice to an appli

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