Page images
PDF
EPUB

the obligor. The person so charged having become insolvent, the surviving partners of the original firm brought their action upon the bond. It was held, that, as they had not originally treated it as a distinct account, but had blended it in the general account with other transactions, they were not at liberty so to treat it at a subsequent period; and, that having received, in different payments, a sum more than sufficient to discharge the debt due upon the bond at the time of the death of the deceased partner, the bond was to be considered as paid (o).

The rule is, that where one of several partners dies, and the partnership is in debt, and the surviving partners continue their dealings with a particular creditor, and the latter joins the transactions with the old and new firm in one entire account, then the payments made from time to time by the surviving partners must be applied to the old debt; because, it is to be presumed that all the parties have consented that it should be considered as one entire account (p), and that the death of one of the partners has produced no alteration (7). However, the creditor's right of election, or power of appropriation, is not exercised by him merely by entries made in his own private books; and is not complete, or lost to him, until such election or appropriation has been communicated to the other party (r).

5. Of a Receipt for Money Paid.

The Stamp Act, 55 G. 3, c. 184, Sch. tit. Receipt, affixes a duty upon every receipt or discharge given for or upon the payment (s)

(0) Bodenkam v. Purchas, 2 B. & Ald. 39; Williams v. Rawlinson, 3 Bing. 71; 10 Moore, 362, S. C. Mr. J. Holroyd, in Bodenham v. Purchas, seemed to be of opinion, that the transfer of the balance due from the obligor to the account of the other customer, with his assent, operated in point of law as a payment. And see ante, 581, 582, 482 to 485.

(p) See Moor v. Hill, Peake's Add. C. 10; ante, 482, 581.

(q) Simson v. Ingham, 2 B. & C. 72; 3 D. & R. 252, S. C. Retiring partner when not discharged by the creditor taking the bill of the remaining partners; David v. Ellice, 5 B. & C. 196; 7 D. & R. 690, S. C.

(r) Simson v. Ingham, 2 B. & C. 65; 3 D. & R. 249, S. C.; Williams v. Rawlinson, 3 Bing. 76. The acceptance of a remittance of bills, &c. will sometimes waive a right of action arising from a delay, &c. in making a payment, though the creditor was not bound to accept the remittance as made; Shipton v. Casson, 5 B. & C. 378; 8 D. & R. 130, S. C.

(s) An I. O. U. does not require a stamp, ante, 96; nor does a memorandum given by an agent admitting the receipt of bills, &c. deposited with, or to be held, &c. by him as such, ante, 96. The statute only applies to a receipt for money paid in discharge of a debt before due.

of money amounting to 21. and upwards (t), varying with the amount received.

"And where any sum of money whatever, shall in the receipt be be expressed or acknowledged to be received in full of all demands (u), a stamp duty of 10s. is required."

"And any note, memorandum, or writing whatsoever, given to any person for, or upon the payment of money, whereby any sum of money, debt, or demand, or any part of any debt or demand therein specified, and amounting to 21. or upwards, shall be expressed or acknowledged to have been paid, settled, balanced, or otherwise discharged or satisfied, or which shall import or signify any such acknowledgment (x), and whether the same shall or not be signed with the name of any person, shall be deemed and taken to be a receipt for a sum of money of equal amount with the sum, debt, or demand so expressed or acknowledged to have been paid, settled, balanced, or otherwise discharged or satisfied, within the intent and meaning of this schedule, and shall be charged with a duty accordingly."

A receipt, or other acknowledgment, not under seal (y), is not conclusive, but only presumptive evidence, that the money therein mentioned has been paid, and may be disproved by the creditor, on the ground of fraud, or mistake of facts, &c. (%) It may be explained by parol evidence (a).

Acknowledgments entered at different times on unstamped paper of the receipt of money, are not evidence of the payments made; but a bill, containing an account of debits and credits, and bona fide made at one time, to be delivered to the defendant as showing the balance against him, is admissible in evidence for the defendant as to the payment (b), without a receipt stamp (c).

(t) Now,51. and upwards, 3 & 4 W.4. c. 23, s. 1. By the 35 G. 3, c. 55, s. 5, the true date of the receipt, and the full sum paid, are to be stated in the receipt.

(u) A receipt by the stage manager of a theatre for a certain sum "in satisfaction for all my claims for the last season," Dibdin v. Morris, 2 C. & P. 44; or a receipt for a specified sum "in full for what I have done for A. B.," is not a receipt in full of all demands, so as to require 10s. stamp; Law v. Gunby, 4 C. & P. 149.

(x) Tomkins v. Ashby, 6 B. & C. 42; 9 Dowl. & R. 543, S. C.

(y) Gilb. Ev. 142.

(z) Stratton v. Rastall, 2 T. R. 366; Fortesc. 157; Alner v. George, 1 Camp. 393, 394, n.; Lampon v. Cork, 5 B. & Al. 611; Skaife v. Jackson, 3 B. & C. 421; 5 D. & R. 290, S. C.

(a) Graves v. Key, 3 B. & Ad. 313; ante, 86, 87.

(b) By producing the account the defendant also makes it prima facie evidence for the plaintiff as to his side of it. The whole account must be read and taken together.

(c) Williams v. Smith, 2 B. & Al. 501, 502, note.

And a written acknowledgment at the foot of an account, that it is correct, does not require a receipt stamp (d).

An unstamped receipt, though not per se admissible in evidence, may be shown to a witness as a memorandum made by him, in order to refresh his memory as to the fact of payment in his presence (e); and it suffices, that he swear that he has no doubt, from the circumstance of his having made the memorandum, that the money was paid as stated in the memorandum, although he add that he cannot recollect the fact (ƒ).

And a written acknowledgment of the payment of money, stamped as a receipt, is evidence of the fact of payment, although there may be other writing on the same paper, amounting to an agreement, provided this does not, in any manner, control or qualify the former part (g). So a memorandum containing an acknowledgment of a receipt of money, but not stamped as a receipt, may be put in evidence, if not offered as proof of a receipt of money, but for other purposes (h).

The 43 G. 3, c. 126, s. 5, provides, that a person who shall have paid a debt may provide himself with a stamped receipt, and require the receiver to write thereon, and acknowledge thereby the receipt of the money; and also demand payment of the amount of stamp duty paid by the debtor; and if the creditor refuse to give a receipt, or pay the duty, he is subjected to a penalty of 107. In reference to this enactment, it seems that the debtor should not tender the money conditionally, that is, if the creditor will give a receipt; but should tender the money absolutely, or pay it before a witness, and then require the creditor to write a receipt upon a stamped paper, with which at the time the debtor should be provided (i).

Amongst other exemptions (k) are receipts upon (1) bills of

(d) Wellard v. Moss, 1 Bing. 134; 7 Moore, 533, S. C.

(e) Rainbert v. Cohen, 4 Esp. 213; Jacob v. Lindsay, 1 East, R. 460. (f) Maugham v. Hubbard, 8 B. & C. 14.

(g) Grey v. Smith, 1 Camp. 387; Skrine v. Elmore, 2 id., 407. A receipt noticing the terms, or consideration of a payment, does not require an agreement stamp; Watkins v. Hewlett, 3 Moore, 211. A receipt for the price of a horse sold, expressing "warranted sound," may be read in

evidence as proof of the warranty, without an agreement stamp; Skrine v. Elmore, 2 Camp. 407.

(h) Id.; Brookes v. Davies, 2 C. & P. 186.

(i) See Laing v. Meader, 1 C. & P. 257; see post, as to Tender.

(k) 55 G. 3, c. 184, Sch. tit. Receipt.

(4) Or the receipt may be upon a paper annexed, if there be not room left on the instrument itself; Orme v. Young, 4 Camp. 336.

exchange, promissory notes, and check (duly stamped when so required by law), upon the same being paid; receipts upon bank notes; letters by the general post acknowledging the safe arrival of bills of exchange, notes, or other securities for money; and receipts indorsed on stamped deeds for the consideration money, or for money due and paid thereon.

3rdly. ACCORD AND SATISFACTION.

It is laid down as a general principle, that accord without satisfaction is no bar to an action for a debt; that is, that the accord, or promise to confer satisfaction, must be fully and actually executed and accepted, in order to afford a defence to such action (m). But this proposition requires much explanation.

Where the accord is to do a thing in satisfaction at a future day, and the act is accordingly done and accepted at that time, and is in law a sufficient satisfaction, no doubt the original demand will not furnish a right to sue thereon after the day on which the satisfaction was rendered, although at the time of the accord, the satisfaction was executory (n). In this instance there is accord with satisfaction, and the claim is satisfied and extinguished.

If the accord or agreement that satisfaction should be rendered by the defendant, or a third person, at a future day, be not founded on a new consideration, and be not so far binding on the debtor as to afford a fresh right of action to the creditor for its non-performance, an action lies on the original demand; even before the time prescribed for rendering satisfaction. Many of the old cases upon the subject of accord without satisfaction were expressly decided on this ground (0).

But in Com. Dig. Accord, B, 4 (p), it is laid down that “an

(m) Bac. Ab., Accord, A.; Com. Dig. Accord, B. 4; Allen v. Harris, 1 Ld. Raym. 122; Lutw. 1538, S. C.; Lynn v. Bruce, 2 Hen. Bla. 317; Drake v. Mitchell, 3 East, 251. In James v. David, 5 T. R. 141, this general rule was admitted; and it was decided that a plea in trespass that the plaintiff and defendant had agreed to settle all matters in dispute, and to bind themselves in a penalty not to sue each other, is a bad plea.

(n) 1 Rol. Ab., Accord, 129, Pl. 14; Com. Dig., Accord, (B 4.)

(0) Case v. Barber, T. Raym. 450; Sir T. Jones, 158, S. C.; 1 Rol. Ab.

Accord, pl. 129, pl. 12; Wickham v. Taylor, Sir T. Jones, R. 168: see Peyton's case, 9 Co. 79 b; Brown v. Wade, 2 Keble, 851. In Case v. Barber, one ground for the decision in the plaintiff's favour was that the satisfaction was to be rendered in part by a third person, who was a party to the accord; but the plea did not show he had promised in writing to do the act so as to have become liable to the plaintiff.

(p) Cited by Parke, J., in Good v. Cheeseman, 2 B. & Ad. 335; and per Cur. Cartwright v. Cooke, 3 B. & Ád. 702. See the observations of Grose, J.,

accord with mutual promises to perform, is good, though the thing be not performed at the time of action; for the party has a remedy to compel the performance." This doctrine was confirmed in a late case. A. and B., brothers, were principal and surety in an annuity bond. By an agreement afterwards executed between them and a third brother for the settlement of their affairs, and the determination of their mutual claims, an apportionment of property and of debts was made among the three, and the annuity bond was declared to be B.'s (the surety's) debt. It was held, that this agreement, whether subsequently acted upon or not, was a binding accord between A. and B., and that B.'s administrator having been obliged to pay arrears of the security, could not recover them from A. (q).

So a new agreement to render satisfaction, founded on a good consideration and mutually binding, by which a doubtful cause of action for unliquidated damages is not perpetually barred, but suspended for a fixed period, that is, until the claimant has done a particular act, will form a defence to an action brought on the original cause of action before the prescribed period. Thus in Stracey v. The Bank of England (r), it appeared that certain stock of the plaintiffs was transferred under a forged power of attorney; the Bank of England offered to replace the stock, if the plaintiff would first prove the amount under a commission of bankruptcy issued against a firm in which the forger of the power had been a partner. After this offer the plaintiffs received a dividend, and engaged to tender a proof of their demand under a commission of bankruptcy. It was held, that they could not sue the Bank in respect of the stock, till they had fulfilled their engagement, to tender the proof under the commission of bankruptcy.

In an action upon the case for wrongfully causing a capias ad

in James v. David, 5 T. R 143; and of Eyre, C. J., in Lynn v. Bruce, 2 H. Bla. 318. It was there held, that the creditor could not sue on a promise by a debtor to pay part of a debt in satisfaction of the whole; for there was no mutuality. And his lordship stated that an accord executory is no bar, because no remedy lies for it for the plaintiff. It is evident that the Chief Justice alluded to cases of bare promises to render satisfaction,not founded

on a new consideration and binding on the creditor. A right of entry acquired by an omission to repair after three months' notice is suspended, but not waived, by an agreement to allow the tenant further time to repair; Doe v. Brindley, 1 Nev. & M. i; 4 B. & Ad. 84, S. C.

(q) Cartwright v. Cooke, 3 B. & Ad. 701.

(r) 4 M. & P. 639; 6 Bing. 754, S. C.

« PreviousContinue »