Defence consisting of an Objection in Point of Law.

In the High Court of Justice,
Queen's Bench Division.

18. B. No.-.

Between A. B., Plaintiff,
and
C. D., Defendant.

Defence.

The defendant says that:

He will object that [here state some point of law, showing that the plaintiff's statement of the alleged cause of action is bad in substance, and that the action is not maintainable against the defendant: see the following forms].

(Signed) L. M.

Delivered the

Defence, including an Objection in Point of Law, to an Action for Verbal Slander actionable only by reason of Special Damage. (R. S. C. 1883, App. E., Sect. III., No. 2.)

The defendant says that

Defence.

1. The defendant did not speak or publish the words.

2. The words did not refer to the plaintiff.

3. The defendant will object that the special damage stated is not sufficient in point of law to sustain the action.

The like, to an Action on a Marine Policy stated to contain Clauses that the Policy was to be Proof of Interest and without Benefit of Salvage.

(R. S. C. 1883, App. E., Sect. III., No. 3.)

1. The defendant did not make the policy.

2. The loss was not by the perils insured against.

3. The defendant will object that the policy was avoided by 19 Geo. II. c. 37, s. 1.

The like, to an Action on a Guarantee for the Price of Goods.

(R. S. C. 1883, App. E., Sect. III., No. 1.)

1. The goods were not supplied to E. F. on the guarantee. 2. The defendant will object that the guarantee discloses a past consideration on the face of it.

Defence, including Objections in Point of Law, to distinct Parts of the alleged Causes of Action.

Defence.

The defendant says that :

1, 2. [Here state any facts which afford a defence to the whole claim or to those parts of it to which the objections in point of law are not pleaded.]

3. As to the

paragraph of the statement of claim [or, As to so much of the statement of claim as alleges that, &c., or, As to the alleged breach of the covenant to repair, or, As to the plaintiff's claim on the alleged guarantee, &c., as the case may be], the defendant will object that [here state the objection: see the preceding forms].

4. As to the said

paragraph of the statement of claim or as the case may be], the defendant will further object that There state any other distinct ground of objection to the same causes of action to which the preceding objection is pleaded].

He will object that [here state some point of law showing that

the defence is bad in substance].

Delivered the

(Signed) L. M.
of

18-.

Reply including an Objection in Point of Law as well as other
Grounds of Reply.
Reply.

The plaintiff says that:

1. He joins issue.

2. [Here state any other ground of reply.]

3. As to the

paragraph of the defence [or, As to the

alleged release, &c., or as the case may be], the plaintiff will object that [here state the objection in point of law].

CHAPTER XI.

DEFENCES AND SUBSEQUENT PLEADINGS IN ACTIONS ON

CONTRACTS.

For the Date, Title and Formal Parts of Defences and Subsequent Pleadings, see "General Forms of Defence," ante, p. 556, "General Forms of Reply, &c.," ante, p. 561, and "Counterclaims," ante, pp. 577 et seq.

For Forms of Denial of the Contract sued upon, see "Agreements," post, p. 616.

For Forms of Denial of Breaches of the Contract, see "Agreements,” post, p. 619.

ACCORD AND SATISFACTION (a).

Defence of Accord and Satisfaction by the Delivery of Goods. (R. S. C. 1883, App. D. Sect. IV.)

On 5th April, 1882, a brown horse was delivered by the defendant to, and accepted by, the plaintiff in discharge of the alleged cause of action.

(a) This defence consists, as the name imports, of two parts, accord and satisfaction; that is to say, of something given or done by the defendant to or for the plaintiff, and accepted by the latter upon a mutual agreement that it shall be a discharge of the cause of action. The agreement is the accord, and the thing given or done is the satisfaction. Both parts are essential to the defence, for accord without satisfaction is no answer. (See James v. David, 5 T. R. 141.)

Bills of exchange and promissory notes may be discharged without satisfaction by renunciation on the part of the holder, in the mode

B.L.

RR

provided by s. 62 of the Bills of Exchange Act, 1882. (See "Bills of Exchange," post, p. 652.)

Anything may be given and received by way of accord and satisfaction; and in the common case of a debtor paying his creditor a debt post diem, the defence is really one of accord and satisfaction, although from the frequent recurrence of the transaction it is looked upon as a distinct defence under the name of payment. (See "Payment," post, p. 794.) In the case of payment of an ascertained debt, however, the payment of a smaller sum by the debtor is no satisfaction of a larger sum then due from him without some additional consideration; whereas, in other cases the value of the things done or given in accord and satisfaction is not inquired into, as they are accepted as equivalent by agreement. (Pinnel's Case, 5 Co. 117a; Curlewis v. Clark, 3 Ex. 375, 379; Down v. Hatcher, 10 A. & E. 121; Sibree v. Tripp, 15 M. & W. 23; Cumber v. Wane, 1 Sm. L. C. 10th ed., p. 325; Goddard v. O'Brien, 9 Q. B. D. 37; Foakes v. Beer, 9 App. Cas. 605; 54 L. J. Q. B. 130; Bidder v. Bridges, 37 Ch. D. 406; 57 L. J. Ch. 300; Underwood v. Underwood, (1894) P. 204; 63 L. J. P. 109.) But payment of a smaller sum may be a satisfaction of a larger ascertained debt where there is a new consideration to support the agreement to that effect, as where it is paid by a negotiable instrument (Sibree v. Tripp, supra; Bidder v. Bridges, supra; and see note (b), post, p. 609); or where it is paid before the whole debt is payable, or as a composition under an arrangement with creditors or by a third party (Lewis v. Jones, 4 B. & C. 506, 513; Welby v. Drake, 1 C. & P. 557; Wilkinson v. Byers, 1 A. & E. 106; Edwards v. Hancher, 1 C. P. D. 111; "Composition with Creditors," post, p. 684; and as to payment by a third party, see Walter v. James, L. R. 6 Ex. 124; 40 L. J. Ex. 104, and cases there cited). An account stated of the balance due between the plaintiff and the defendant, and a payment of that balance by the defendant, being a smaller sum than the amount claimed, where all the items of the account are on one side, is not a defence by way of accord and satisfaction to the whole claim, but merely amounts to a defence of payment pro tanto. (See Perry v. Attwood, 6 E. & B. 691; 25 L. J. Q. B. 408; Smith v. Page, 15 M. & W. 683.) But a defence of an account stated of cross demands and payment of the balance is good. (Callander v. Howard, 10 C. B. 290; Sutton v. Page, 3 C. B. 204; and see form "Payment," post, p. 797.)

A substituted agreement may be accepted in accord and satisfaction of an existing cause of action, the new promise only, and not the performance of it, being taken in satisfaction and discharge. (Hall v. Flockton, 14 Q. B. 380; 16 Ib. 1039; Evans v. Powis, 1 Ex. 601; Edwards v. Hancher, supra.) In such cases the discharge of the original debt by the acceptance of the new promise in satisfaction of it is a sufficient consideration for such new promise, and if the new promise so accepted is not performed, the remedy of the creditor will be by action for its breach. (Lynn v. Bruce, 2 H. Bl. 317; Henderson v. Stobart, 5 Ex. 99; McManus v. Bark, L. R. 5 Ex. 65; 39 L. J. Ex. 65; Leake on Contracts, 3rd ed., p. 758.)

An accord, in order to form a defence, must be executed and satisfied, as the accord alone is no defence. (Peytoe's Case, 9 Co. 79a; Bayley v. Homan, 3 Bing. N. C. 915, 920; see Hardman v. Bellhouse, 9 M. & W. 596.) Thus, a plea that it was agreed that the defendants should secure the debt by a mortgage to be paid by instalments, and that the defendant had always been ready to execute the mortgage, but had never been called upon to do so, was held bad. (Allies v. Probyn, 2 C. M. & R.