if the fact be so; and the plaintiff ought not to demur to such plea, as tendering an immaterial issue (24). But if to a bond so conditioned (s), the defendant pleads payment on the day, and issue is joined thereon, and verdict for the plaintiff, a repleader must be awarded, as being an immaterial issue; for such verdict does not find any breach of the condition, because the money might have been paid before the day, which would have been a performance of the condition.

Solvit post Diem.-The bond being forfeited by the non-payment of the money on the day mentioned in the condition, a payment after the day could not be pleaded at the common law; but by stat. 4 Ann. c. 16, s. 12, "where debt is brought upon any bond, with a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators, have, before the action brought, paid to the obligee, his executors, or administrators, the principal and interest due by the condition or defeasance, though such payment was not made strictly according to the condition or defeasance, yet it may be pleaded in bar of such action. The form of plea under this statute (usually termed a plea of solvit post diem) is, that the defendant, after the day mentioned in the condition, and before the commencement of the plaintiff's action, paid the money mentioned in the condition, with interest, according to the form of the statute, &c. N. This statute is confined to absolute payments (t). Hence a tender and refusal of principal and interest after the day, and before action brought, cannot be pleaded (u).

By R. G. H. T. 4 Will. IV., pleas founded on one and the same principal matter, but varied in statement, description, or circumstances only, are not to be allowed. Ex. gr. Pleas of solvit ad diem, and of solvit post diem, are both pleas of payment, varied in the circumstance of time only, and are not to be allowed. But pleas of payment, and of accord and satisfaction, or of release, are distinct, and are to be allowed. See also R. G. T. T. 1 Vict. (ante, p. 557) as to Plea of Payment, and Particulars of Demand.

Evidence.-Formerly, if a bond had lain dormant for 20 years or more, without payment of interest or circumstance to account for the acquiescence, this was evidence sufficient, whence a jury might have presumed payment; now, by stat. 3 & 4 Will. IV. c. 42,

(s) Tryon v. Carter, Str. 994; 7 Mod. 231, Leach's edit.

(t) Underhill v. Matthews, Bull. N. P. 171.

(u) See Player v. Bandy, 10 Mod. 26; Dixon v. Parkes, 1 Esp. 110; 2 Wms. Saund. 48, n. f.

(24) "If no payment has in fact been made, the proper replication in this case is, that the money was not paid at the day mentioned in the plea, nor at any time before or after the making of the obligation." Per Denison, J., 1 Bl. R. 210, and 2 Burr. 945.

[14th August, 1833] sect. 3, all actions of debt, upon any bond or other specialty, shall be commenced and sued within ten years after the end of this present session, or within twenty years after the cause of such action or suit."

7. Release.

To debt upon bond, the defendant may plead a release, by the plaintiff, after the bond given (25). If there are two or more obligees (x), a release by one will be a bar to all. In debt on bond, by several plaintiffs, as trustees (y), &c., the defendant pleaded a release from one of the plaintiffs. On demurrer, the plea was holden good; for the obligees only had the legal interest, and consequently the right to release; and a release from the one was a release from the others. If there are two or more obligors, a release to one may be pleaded in bar by the other, whether the bond be joint (2), or joint and several (a), for there is but one duty extending to all the obligors, and therefore a discharge of one is a discharge of all. So a release to one obligor is a release in equity (b) to both, as well as in law. It is immaterial whether the release be by deed, or by operation of law (c) (26); for where the obligee in a joint and several bond, made one of two obligors his executor, who administered and died; it was holden (d), that the surviving obligor was discharged for a personal action once suspended by the voluntary act of the party entitled to it, is for ever gone and discharged (27).

(x) 2 Rol. Abr. 410; 1. 47.

(y) Bayley v. Loyd, M. T. 12 Geo. II. C. B.; 7 Mod. 250, Leach's edit.

(z) 2 Rol. Abr. 412, (G.) pl. 4. (a) Ib. pl. 5; 1 Inst. 232, a.

(b) Bower v. Swadlin, 1 Atk. 294.

(c) Cheetham v. Ward, 1 Bos. & Pul. 630, recognized in Nicholson v. Revill, 4 A. & E. 682, 3.

(d) Dorchester v. Webb, 3rd Resolution, Sir W. Jones, 345.

(25) It seems that if the release has been obtained fraudulently, the special circumstances under which it was given, and that it was obtained by fraud, may be replied. See a replication of this kind in Craib v. D'Aeth, 7 T. R. 670, n. (b). It is worthy of remark, that in Legh v. Legh, 1 Bos. & Pul. 447, where the obligor, after notice of the bond having been assigned, took a release from the obligee, and pleaded it to an action brought by the assignee in the name of the obligee, the court (exercising, as it should seem, an equitable jurisdiction) set aside the plea on a summary application. In order to call upon the court to exercise this equitable jurisdiction, it must be made out manifestly and clearly that there has been a fraud by some person upon the plaintiff seeking to enforce the demand, and that the defendant was a party to that fraud: and in a recent case the court refused to set aside a plea of release, when the releasor had an immediate interest in the money sought to be recovered, and no fraud was shown. Phillips v. Clagett, 11 M. & W. 84.

(26) But a release by will is not sufficient.

C. T. H. 357.

Parsons v. Coward,

(27) Notwithstanding the legal extinguishment, in equity the bond will

So where the obligee in a joint and several bond made one of two obligors his executor, with others (e), and the obligor executor administered; it was holden, that the action was discharged as to all the obligors. But if A. and B. are jointly and severally bound in an obligation to C., and A. makes C. and D. his executors; C. refuses, and D. administers, and afterwards C. makes D. his executor; D., as executor of C., may maintain an action on the bond against B. (f); for when the obligor makes the obligee and another executors, and the obligee refuses, the debt is not released or discharged, and the obligee or his executor may sue for the debt (28). If feme obligee take the obligor to husband, this is a release in law (g). So if there be two feme obligees, and the one takes the debtor to husband (h). The like law is, if two be bound in an obligation to a feme sole, and she takes one of them to husband, and the husband dies, the wife shall not have an action against the other obligor (i). But where a man, on the day of his marriage, gave a bond to the woman, to whom he was to be married, by which he stipulated, that his representatives should, within twelve months after his death, pay to his widow, or her representatives (k), a sum of money; and the marriage took place, and afterwards the husband died; whereupon the widow brought an action against the representatives of the husband, on the bond; it was holden, that the marriage did not operate as a release of the debt, the bond not being payable during the lifetime of the obligor, nor until twelve months after his death. To a plea, that plaintiff by a deed of release had released one of two joint obligors; the plaintiff replied, that the release was given at the request of the defendant, (the other obligor,) and on the express condition, that the release should not operate in his discharge; this was holden (1) bad, on the ground that it sought

(e) Cheetham v. Ward, 1 Bos. & Pul. 630, recognized and applied to a promissory note, indorsed by executor of payee, Freakley v. Fox, 9 B. & C. 130.

(f) Dorchester v. Webb, W. Jones, 345. (g) 1 Inst. 264, b.

(h) Ib.

(i) 21 H. VII. 30.

(k) Milbourn v. Ewart, 5 T. R. 381. (1) Cocks v. Nash, 9 Bingh. 341. See also Brooks v. Stuart, 9 A. & E. 854.

be considered as assets, available either to the residuary legatee, or heir at law, as the case may be. Fox v. Fox, 1 West. C. T. H. p. 162, and cases there cited. "The debt is considered to have been paid by the executor to himself, and becomes assets in his hands. Upon this supposition the rule in equity depends, which makes the executor accountable for the amount of his debt as assets.' Per Lord Tenterden, C. J., in Freakley v. Fox, 9 B. & C. 134. See further as to the effect of making an obligor, executor, Wankford v. Wankford, 1 Salk. 305, 6.

(28) But otherwise, if the obligee administers. Per Cur. S. C. debtor make his creditor and another person executors, and the creditor neither proves the will nor acts as executor, he may maintain an action against the other for his demand on the testator. Rawlinson v. Shaw, 3 T. R. 557.

by the introduction of parol evidence to put on an instrument under seal a construction differing from the import of that instrument. A covenant not to sue will not operate as a release (m), in its own nature, but only by construction, to avoid circuity of action. Hence, if the obligee of a bond covenant not to sue one of two joint and several obligors, and if he do so, that the deed of covenant may be pleaded in bar, he may still sue the other obligor. See Fitzgerrard v. Trant, 11 Mod. 254, and Lacy v. Kynaston, Holt's Rep. 178; 1 Lord Raym. 690, and 12 Mod. 551, where the distinction between the covenant not to sue a sole obligor, and one of several obligors, is taken; in the latter report it is said, "A. is bound to B., and B. covenants never to put the bond in suit against A.; if afterwards B. will sue A. on the bond, he may plead the covenant by way of release. But if A. and B. be jointly and severally bound to C. in a sum certain, and C. covenant with A. not to sue him, that shall not be a release, but a covenant only; because he covenants only not to sue A., but does not covenant not to sue B.: for the covenant is not a release in its nature, but only by construction to avoid circuity of action; for where he covenants not to sue one, he still has a remedy; and then it shall be construed as a covenant, and no more." A covenant not to sue one of two joint debtors will not operate as a release to the other (n). In an action for a partnership debt, a covenant not to sue, entered into by one only of the plaintiffs, cannot be set up as a release (o).

Even in those cases where a covenant not to sue shall be construed to ensure as a release to avoid circuity of action, the covenant not to sue must be a perpetual covenant, that is, a covenant not to sue at all; for a mere covenant not to sue within a particular time (p) will not have this effect. In such case the party cannot plead the covenant in bar, but is put to his action of covenant. But if the obligee covenant not to sue the obligor before such a day (q), and if he do, that the obligor shall plead this as an acquittance, and that the obligation shall be void, this is a suspension of the obligation, and so by consequence a release. A bond was conditioned (r), that the obligor should indemnify the obligee from all sums the latter should pay on account of the obligor; before the execution of the bond, the following memorandum was indorsed on it, viz. "that the obligee hath given an undertaking not to sue upon the bond until after the obligor's death;" it was holden, that the memorandum was to be taken as part of the condition, and consequently that the bond was payable only by the representative of the obligor after his death.

(m) Dean v. Newhall, 8 T. R. 168. (n) Hutton v. Eyre, 6 Taunt. 289. (0) Walmsley v. Cooper, 3 P. & D. 149; 11 A. & E. 216.

(p) Deux v. Jefferyes, Cro. Eliz. 352; 1 Rol. Abr. 939, S. C.; Ayliff v. Scrim

shire, 1 Show. 46; Salk. 573, S. C.;
Thimbleby v. Barron, 3 M. & W. 210.
(q) 1 Rol. Abr. 939, L. pl. 2.

(r) Burgh v. Preston, 8 T. R. 483. See Norton v. Wood, 1 Russ. & My. 178.

8. Set-off.

At the common law, if the plaintiff was indebted to the defendant in as much or even more than the defendant owed to him, yet the defendant had not any method of setting off such debt in the action brought by the plaintiff for the recovery of his debt. To obviate this inconvenience and to prevent circuity of action, or a bill in equity, it was enacted, by stat. 2 Geo. II. c. 22, s. 13, (made perpetual by the 8 Geo. II. c. 24, s. 4,) that "where there are mutual debts between the plaintiff and defendant; or if either party sue or be sued as executor or administrator where there are mutual debts between the testator or intestate, and either party; one debt may be set against the other, and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require; so as at the time of pleading the general issue, where any such debt of the plaintiff, his testator, or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sum or debt so intended to be insisted on, and upon what account it became due, or otherwise such matter shall not be allowed in evidence on such general issue. [But as to notice, see operation of new rules, ante, p. 156.]

Upon the construction of this statute several questions arose : First, Whether a debt on simple contract could be set off in common cases against a specialty debt? 2ndly, If in common cases, whether they could be so set off, where an executor or administrator is plaintiff? and, 3dly, Whether, in the case of a bond, the penalty was to be considered as the debt? To remove these difficulties, it was enacted and declared by stat. 8 Geo. II. c. 24, s. 5, that, by virtue of "the preceding clause, mutual debts might be set against each other, either by being pleaded in bar, or given in evidence on the general issue (s), in the manner therein mentioned, notwithstanding such debts were deemed in law to be of a different nature; unless in cases where either of the said debts should accrue by reason of a penalty contained in any bond or specialty; and in all cases, where either the debt for which the action is brought, or the debt intended to be set against the same, hath accrued by reason of any such penalty, the debt intended to be set off shall be pleaded in bar; in which plea shall be shown how much is due on either side (29); and in case the plaintiff shall recover in any such action,

(8) Under the operation of the new rules See ante p. 156. a set-off must now be pleaded specially.

(29) Hence the defendant, in his plea, must aver what is really due; and this averment has been holden to be traversable,* although laid under a videlicet.+

*Symmons v. Knox, 3 T. R. 65.

+ Grimwood v. Barrit, 6 T. R. 460.