CHAPTER X.

ACCORD AND SATISFACTION.

ALLEN . HARRIS.

IN THE COMMON PLEAS, MICHAELMAS TERM, 1696.

[Reported in 1 Lord Raymond 122.]

TROVER for a waistcoat. The defendant pleads, that the plaintiff, in consideration that the defendant at the special instance of the plaintiff assumed to pay to the plaintiff 20s. agreed to discharge the defendant of this trover, etc., and lays mutual promises to perform, etc. The planitiff demurs.

Girdler for the defendant.

The old rule was, that an accord with satisfaction ought to be pleaded executed, that the plaintiff might be sure of something for his damages; but an arbitrement may be pleaded without performance, because the parties may have reciprocal remedies. Then it being now settled, that the parties may have actions upon mutual promises, this accord may be pleaded, though not executed, because each party may have his remedy. 2 Jones, 158; Raym. 450; Case v. Barber; 2 Jones, 168; Wickham v. Taylor. Sed non allocatur. For, per curiam, if arbitrement be pleaded with mutual promises to perform it, though the party has not performed his part, who brings the action, yet he shall maintain his action; because an arbitrement is like a judgment, and the party may have his remedy upon it. But upon accord no remedy lies. And the books are so numerous, that an accord ought to be executed, that it is now impossible to overthrow all the books. But if it had been a new point, it might be worthy of consideration. Judgment for the plaintiff. See 15 Hen. 6; Accord 1; 3 Cro. 304; Balston v. Baxter ; Hil. 7 Edw. 4, p. 6; Stile, 245, 252.

BEAUMONT v. GREATHEAD.

IN THE COMMON PLEAS, JANUARY 14, 1846.

[Reported in 2 Common Bench Reports 494.]

DEBT for £110 upon a promissory note for £50, dated April 20th, 1842, payable two months after date, with counts for £30 money lent, and £30 upon an account stated. Damages £50.

Plea, that, after the accruing of the causes of action, and every of them, and before, etc., to wit, on, etc., the defendant paid to the plaintiff, and the plaintiff accepted and received from the, defendant, divers sums of money, amounting to all the moneys in the declaration mentioned, in full satisfaction and discharge of the debt and damages in the declaration mentioned-verification.

Replication, traversing the acceptance in satisfaction.

The cause was tried before Tindal, C.J., at the sittings in London after last Trinity Term. The action was brought in the name of Beaumont, as trustee for a loan society, to recover principal and interest alleged to be due upon a joint and several promissory note given to the society by one Green, as principal debtor, and the defendant and one Chittleborough, as sureties.

Green being called in support of the plea, stated, that at various times after the note became due, he had made payments on account thereof, amounting in the whole to £50, to one Boatman, the secretary of the society.

On the part of the plaintiff it was submitted, that, assuming Green's statement to be true, it did not support the plea; that, at all events, the plaintiff was entitled to a verdict for the interest accruing after the maturity of the note; and that the payment ought to have been pleaded according to the fact, as a payment made, not by the defendant, but by Green.

It was left to the jury to say whether or not Green really did pay the £50 to Boatman. A verdict was found for the defendant, with leave to the plaintiff to move to enter a verdict for nominal damages, if the Court should be of opinion that he was entitled to interest.'

Byles, in Michaelmas Term last, obtained a rule nisi accordingly.

Dowling now showed cause.

Byles (with whom was R. Miller) in support of the rule.

1 No question was raised whether a payment of £50 could satisfy an admitted precise demand of £110, or whether the jury were justified in wholly negativing the damages (not exceeding £50) confessed by the plea.

TINDAL, C.J. The only objection that remains to be considered, is, that the plea was not supported by the evidence. The form of the plea is, that, after the accruing of the causes of action, and every of them, and before the commencement of the suit, the defendant paid to the plaintiff, and the plaintiff then accepted and received of and from the defendant, divers sums of money, amounting to all the moneys in the declaration mentioned, in full satisfaction and discharge of the debt and damages in the declaration mentioned. It is in effect pleaded in full satisfaction of the debt and damages. The jury having given the plaintiff no damages for the detention of the debt, the application made to us on his behalf is, that he may enter a verdict for nominal damages. The question, therefore, is, whether a party who has received the full amount of his actual debt, may still maintain an action for nominal damages. No authority has been cited to show that this nominal damage is such an actually existing damage, that it is not covered by payment of the debt. I think there is no foundation for this application. At all events, if the objection is valid, it is upon the record.

MAULE, J. The question for consideration is, whether, where a sum of money is due upon simple contract, and the creditor is entitled to claim nominal damages for its detention, the debtor is discharged by the creditor's acceptance, before action brought, of the amount of the debt, or whether the former may afterward sue for such nominal damages. I apprehend he cannot. Nominal damages are a mere peg on which to hang costs. If a creditor were to say to his debtor, "You owe me £50 and a nominal sum for the detention thereof;" and the latter were to produce £50 and tender it to the former, saying, "Here is the amount of the debt I owe you, and the nominal damages you claim;" that, I conceive, would be a very good tender. Nominal damages, in fact, mean a sum of money that may be spoken of, but that has no existence in point of quantity; and I think a man may very well pay £5° in satisfaction and discharge of a debt of £50 and of the nominal damages due for its detention. The present plea may, therefore, be taken to have been proved, the jury not being bound to give any interest. The plea is, in effect, a plea of payment of some money, and not of an ascertained and definite sum; and consequently the objection will probably not be found to be upon the record; if it is, the plaintiff may have the benefit of it elsewhere. Then, this being joint and several promissory note, I think a payment made by one of the makers, enured in discharge of the several liability of each, and

1

of the joint liability of all; and, therefore, when the payment was made by Green, it was made, and was accepted by the plaintiff, for each of the other makers of the note, and has been properly pleaded as a payment by the party on whose behalf it was made.

CRESSWELL, J. I am of opinion that the Lord Chief Justice was not bound to tell the jury that they must find some damages, and that the jury were not bound to give interest in the shape of damages. Payment of a smaller sum cannot be pleaded in satisfaction of a debt of larger amount; but I am not aware that the doctrine has ever been extended to the case of a claim for nominal damages after payment of the full amount of the actual debt.

It may be doubtful whether the question is not upon the record. The plea is, that, after the accruing of the causes of action, and every of them, and before the commencement of the suit, the defendant paid to the plaintiff, and the plaintiff then accepted and received of and from the defendant, divers sums of money, amounting to all the moneys in the declaration mentioned, in full satisfaction and discharge of the debt and damages in the declaration mentioned. If that is to be taken to mean a payment only of the debt mentioned in the declaration, then the objection is upon the record, and our decision, if erroneous, may be set right.

As to the other point, I concur in the opinion expressed by the rest of the Court.

Rule discharged.'

FORD v. BEECH.

IN THE EXCHEQUER CHAMBER, HILARY TERM, 1848.

[Reported in 11 Queen's Bench 852.]

THE verdict was entered up as directed in the preceding judgment; and judgment was entered on the record, with a consideratum est," that the plaintiff take nothing by his said writ, but that he be in mercy, etc., and that the defendant go thereof without day, etc.;" with costs for defendant against plaintiff, and award of execution thereof.

The plaintiff brought error in the Exchequer Chamber; assigning for error, generally, that judgment ought to have been given for the plaintiff; and also that judgment ought to have been given for the plaintiff "by reason of the non-per1 The concurring opinion of Erle, J., has been omitted.-ED.