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A Treatise on the Powers and Duties of the Justices of the Peace in the State

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A Treatise on the Powers and Duties of the Justices of the Peace in the State CHAPTER XII. A CONSIDERATION on Sous on THE Dnsnnsss on M0s'r Common OCCURRENCE. accosn AND sarissacnos. A new promise defeats bar of. in case of I 198. What it is. Joint contractors. Riki]; IJN-I; 99°?‘ D1501 whom and when promise to \ To I 199. How pleaded. be made. I 200. What will amount to satisfac tion. I 230. Whempromisc may be inferred. I 231. Proof of payment. 201. In case of a specialty security. I accounts, I 232. Mutual when statute I 202. An accord must be certain. begins to run. I 203. An accord must be executed. I 233. What disability will affect run I 204. Satisfaction must be from de~ ning fendnnt. of statute. I 234. Eflect of absence from state. I 205. Separate compromises by joint I 235. party, debtors. Death of extension of time by reason of. pom-zss. I 238. Failure to serve process. exten I 206. What it is. sion of time in case of. 207. Modern doctrine of. I I 237. Fraudulent concealment, exten INFANCY. sion of time by reason of. 5 233. Set-oil. when barred. I 208. Effect nf. 5 232$. Computation of time. I 209. When contract is for neces 5 240. Subsequent acknowledgment in saries. case of breach of contract. Infants‘ contracts voidable. §241. Subsequent acknowledgment in infant must do equity. case of torts. infant's liability for torts. Infant's liability for negligence. TINDIR. .---->-¢~ B“-“.'°!"° tatewtats of proof and evidence in m-1 Burden I 242. When can be made. case of. I 243. By whom to he made. l'.n*usN'r. I 244. To whom to be made. of, I215. How defense made. I 245. Of what to be made. I216. What will operate as. \I 246. How to he made. I2i7. Presumptions of. I 247. Effect of. I218. Application of. I 248. Effect of notice of. suit, i219. Essentials of the notice of. I 249. Under statute after brought. annnssn. is, effect USURY. I ‘Z20. What it and of. I-‘omtna RECOVERY. I 250. The statute. I251. Interest upon installments of in I 221. When a bar. terest. S1'.\'i‘["i'}‘. or LI.\il'l'.\TIO.\'S. I 252. Interest on contracts payable in Nature of the defense. other states. The statutes. DBUNKINNDS8 . When begin to run. s Effect of disability to sue. I 253. Under what circumstances rotonwto uaranlon .°f~‘:“:"'°.'° 31111 [low the defense of may he met. defense. 201 - \ § 198 .-xccoso AND SA'i‘lSFACTiON. Ca. XII, ACCORD AND SATISFACTION. §198. What it i8.—Acc0rd is an agreement between two parties to give and accept something in satisfaction of a claim made by the one against the other,1 which when performed, is ' satisfaction, and a bar to all actions upon that account.’ Ac cord and satisfaction is a defense in all actions except upon reeords.3 §199. How pleaded.—The best and safest way of pleading an accord is to plead it by way of satisfaction; for, if it is pleaded by way of accord, a precise execution of it in every part must be pleaded; and if there be a failure in any part, the plea is insuificient; but if it is pleaded by way of satisfac tion, the defendant need plead no more, but that he paid the plaintifl’, or delivered to him, the money or article in full sat isfaction, which he received.‘ The acceptance in satisfaction is the essence and gist of the plea.“ A plea of accord merely, it without satisfaction, will be bad; that is, must be expressly averred that the money or property was accepted in satis faction and discharge; and an averment that the money or the property was given in payment and satisfaction would be insufiicient.° The plea must show that the satisfaction pro a ceeded from the defendant; for, if it be executed by total stranger, the defendant cannot avail himself of it.’ It is not necessary, in general, to allege the satisfaction to be-reason able,‘ or the value of it.° Where accord and satisfaction is admissible under the general issue, it must appear that the accord was executed before the commencement of the suit,“ it is but when specially pleaded, puis, etc., it no objection that 1—Bacon‘s Abr., “Accord and Satis Hawiey v. Foote, 19 lbid., 516; Brook faction,“ C. lyn Bank v. DeGrauw. 23 Ibid., 342; 2—3 Bis. Com., 15, 16. The next Tilton v. Alcott, 16 Barb., 598: Brown friend of an infant cannot bind the in ing v. Crouse, 43 Mic-h., 489; 5 N. W., fant by an accord and satisfaction: 664; Harrison v. Gamble, 69 Mich., ' Burt v. McBain, 29 Mich., 260. 96; 36 N. W., 682. 6 37; 3-1 Chitty’s Pi., 485-6; 1 Saund. 7-—Clow v. Borst. Johns., Hallenbeck, 19 Wend., 408; Pl. & Ev., 25. Daniels v. 4—Bacon’s Abr., “Accord and Satis Kemp v. Balls, 10 Exch., 607. faction," C.: Daniels v. liallcnbeck, 19 8—Heathcote v. Cruikshank. 2 Wend., 410. Term., 26. 5—Danieis v. Hallenbeck, 19 Wend., 9——3 Chltty's "L, 924, note o. 408, 410, 10—Bartlett v. Pentlund, 10 B. & C., 6—Drake v. Mitchell, 3 East, 251: 776. see, Russell v. Lytle, 6 Wend., 390; 202 CB. XII. ACCORD AND SATISFACTION. § 200 was executed after the commencement of the action, and it may be pleaded in bar of the further maintenance of the suit." If the accord and satisfaction took place after action brought, the notice must aver, and it must be proved, that it was a satisfaction of the costs and damages sustained by the breach of contract.“ But where, to an action upon a note, the de fendant pleaded payment by the maker, after the suit was brought, of a sum about two dollars less than the note, and interest, “in full satisfaction and discharge of the note,” the plea was held to be good, on the ground that interest ought not to be considered as part of the debt within the purview of the rule that payment of a lcss sum, in satisfaction of a debt due, is not good, and as to the costs, when parties settled without noticing them, they are to be borne by each party." There is an exception to the rule that a smaller sum is not a. satisfaction of a greater, namely, where creditors agree to take a composition from their debtor. To establish this defense, the defendant must prove the agreement between him and the plaintiff to accept the satis faction, and that the satisfaction agreed upon was reasonable, perfect, certain and executed," and proceeded from the de fendant." §200. What will amoimt to satisfaction.—The satisfaction must be a reasonable and complete satisfaction of the thing demanded, and operates as an extinguishinent of the original cause of action. Therefore, acceptance of a. less sum is not a satisfaction of a greater." So, an agreement with one of two l1—Corbell v. Swinburne, 8 Ad. & by a stranger and subsequently ratified Ell., 673. by the defendant. it is a good bar: 12—I<‘rancia v. Aywell, 5 B. It Ald., Belshaw v. Bush, 11 C. B., 191, 207; 886: 1 Saund. Pl. & Ev., 37. and see. Booth v. Smith, 3 Wend., 66. 13—Johnston v. Brauuan, 5 Johns., 16—~Fitch v. Sutton, 5 East, 230. 271; Tiiotson v. Preston, 3 Johns., That is, where the greater sum is actu 229. aiiy and justly due, and there is no 14—ileathcote v. Cruikshank. 2 dispute to its amount: Seymour v. Term R.. 26. Mlnturn, 17 Johns., 160; Dederick v. i5—Clow v. Borst., 6 Johns.. 37; Leman, 9 Ibld., 333; Harrison v. Gam Daniels v. Hallenbeck. 19 Weud., 408. ble, 69 Mich., 98; 38 N. W., 682; But if such n satisfaction is ad Leeson v. Anderson, 99 Mich., 247; 58 vanced by a stranger and is accepted N. W., 72. This doctrine is applic by the defendant, it is a good satis able to debts liquidated by agreement faction: Simpson v. Eglnston, 10 or otherwise; and s claim any portion Exch., 845. And if payment is made of which is in dispute cannot be said 203 § 200 ACCORD AND SATISFACTION. CH. XII. joint makers of a note to accept part of it from him and to look to the other for the residue and the payment of the money accordingly, is not a good accord and satisfaction, nor will it prevent a suit against both for that debt." But pay ment and acceptance of a part of a debt in satisfaction of the whole, before the time it became due," or at a place where it was not payable," or if a third person guarantee or secure the payment of a less sum,2° or there be a release, or some consideration for the relinquishing his further claim, would be a sufiicient satisfaction.” But payment and acceptance in satisfaction of an amoimt exceeding the principal of the debt, but not covering the whole interest, nor the costs of suit, is sufiicient." If a debtor give a chose in possession for a chose in action, as a horse,'or other property in specie, it is sufi“1 cient.“ The property assigned or delivered may amount to the sum in demand, and more, or it may amount to less-not evcn the twentieth part of it-—yet it is good enough, because the plaintiff has accepted it as a full satisfaction.“ But the property given, or the thing done, must appear to be of some value or advantage to the plaintiff.*’-5 to be liquidated within the meaning of ville, 5 B.
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