As the lapse of twenty years(z) is sufficient to raise presumption that a bond has been paid, so it has been held to be a good defence to an action on a promissory note payable on demand. (a) But if during this period the plaintiff was an alien enemy, and payment to him would consequently have been illegal, such a presumption would not, it seems, arise.(6) The production of a check drawn by the defendant on his banker, and indorsed by the plaintiff, is evidence of payment ;(e) but not if there have been several transactions between the parties, without evidence to connect the delivery of the check with the payment in question. (d) A bill or note once in circulation over due, and coming out of the hands of the acceptor or maker, is presumed to be paid. Thus it is a maxim of the Scotch law, chirographum apud debitorem repertum presumitur solutum. But the mere production of a bill from the custody of the acceptor is not prima facie evidence of his having paid it, without proof of its having been once in circulation after it had been accepted.(e)(1) The party paying a bill or note has a right to insist on its being delivered up to him. (f) But, where the bill or note is not negotiable, he cannot refuse to pay it till it is delivered up.(g) It was formerly held, (h) that a party paying a debt could not in (z) See now 3 & 4 Wm. 4, c. 42, s. 3. (a) Duffield v. Creed, 5 Esp. 52. (b) Du Belloix v. Lord Waterpark, 1 D. & R. 16. (c) Egg v. Barnett, 3 Esp. 196. See ante, p. 16. (d) Aubert v. Walsh, 4 Taunt. 293. (e) Pfiel v. Vanbatenbery, 2 Camp. 439. (f) Harsard v. Robinson, 7 B. & C. 90; 9 Dowl. & R. 860; Powell v. Roach, 6 Esp. 76; Alexander v. Strong, 9 M. & W. 733. (7) Wain v. Bailey, 10 Ad. & E. 616; 2 Per. & Dav. 507, S. C. (h) According to the older authorities, the obligor of a single bond is not bound (1) If a bill be sent to the drawee, and he be directed to pass it to the credit of the holder and do so credit it, the bill is functus officio, and cannot be further negotiated. Savage v. Merle, 5 Pick. 85. Where a promissory note that has been negotiated comes into the possession of one of the parties liable to pay it, such possession is prima facie evidence of payment by him, and he is to be treated as the bona fide holder unless the con trary is made to appear. McGee v. Prouty, 9 Metcalf, 547. The possession of a bill by the drawee after maturity is prima facie evidence of payment. Hill v. Gayle, 1 Alabama, 275. Fellows v. Kress, 5 Blackford, 536. general demand a receipt for the money, and therefore that a tender, on condition of having a receipt, was insufficient. (i) It has since, however, been enacted, by 43 Geo. 3, *c. 126, s. 5, that a per[*181] son to whom money has been paid is bound to give a receipt, and that if he refuses to fill up a blank stamp paper presented to him for that purpose, and to pay the stamp, he becomes liable to a penalty of 107.(k) It is usual to write a receipt on the back of bills, and it has been said that it is the duty of bankers to make some memorandum on bills or notes which have been paid.(1) A receipt on a bill or note, duly stamped, does not require an additional stamp.(m) And a receipt on a distinct piece of unstamped paper, though it cannot be looked at as evidence of the payment, may be shewn to a witness who has signed it, to refresh his memory, and enable him to speak to the fact of payment.(n) Letters by the general post, acknowledging the safe arrival of any bills of exchange, promissory notes, or any other securities for money, are exempted from stamp duty.(0) A receipt on the back of a bill imports, prima facie, that it has been paid by the acceptor.(p) A tender of part of the amount of an entire sum due on a bill or note, seems not to be good even pro tanto.(q) A defendant, where there is a plea of payment (but not otherwise), is allowed to reduce the damages by the amount of payment established, though he be unable to prove the plea.(r) But if he plead that a note was given for a part only of the apparent consideration, and allege payment of that part, and on issue joined the to pay without an acquittance under seal; otherwise of a bond with condition. Bro. Ab. tit. Faits, Pl. 8; 1 Vin. Ab. 192; Fortesc. Rep. 145. (i) Green v. Croft, 2 H. Bla. 30; Cole v. Blake, Peake, N. P. C. 179. (k) See 5 & 6 Vict. c. 82, same duty for Ireland. (7) Per Ld. Ellenborough, Burbridge v. Manners, 3 Camp. 195. (m) 55 Geo. 4, c. 184, sched. Receipts. A receipt may be explained. Graves v. Key, 3 B. & Ad. 313. (n) Maugham v. Hubbard, 8 B. & C. 14; 2 Man. & R. 5. (0) 55 Geo. 3, c. 184. (p) Pfiel v. Vanbatenberg, 2 Camp. 439; Scholey v. Walsby, Peake, 25; Graves v. Key, supra. (q) Cotton v. Godwin, 7 M. & W. 147; Hesketh v. Fawcitt, 11 M. & W. 356. (r) It is said to have been doubted, whether in an action on a bill or note, a plea of part payment be good even pro tanto. Lord v. Ferrand, 13 L. J., Ex. 111. Sed quære, ante, p. 179. plea is found against him, the plaintiff is entitled to a verdict for the full amount of the note.(s) If the drawer discover, after payment, that the bill or check is a forgery, he may in general, by giving notice on the same day, recover back the money.(t) And if he have paid the bill with the understanding that he was to receive it back, and do not, he may bring an action to retract the payment.(u) *CHAPTER XVI. [*182] OF SATISFACTION, EXTINGUISHMENT, AND SUSPENSION OF THE RIGHT OF ACTION ON A BILL. THE nature and effect of payment, in the ordinary sense of that word, has already been considered in the Chapter on PAYMENT. The nature and effect of such dealings with the acceptor, or other principal debtor as discharge the drawer or indorser, is a subject of so much importance, that it will form the subject of a separate Chapter on SURETYSHIP. In the present Chapter, the reader's attention is requested to such observations only on satisfaction, extinguishment, and suspension as do not properly fall within either of those two divisions. A simple contract may be discharged before breach without a (s) Robins v. Lord Maidstone, 4 Q. B. Rep. 811. (f) See Chapter on Forged Bills. (u) Alexander v. Strong, 9 M. & W. 733. See also the Chapter on Pleading. release and without satisfaction. (a)(1) But after breach, unless there be a release, there must be satisfaction.(b) (a) Langden v. Stokes, Cro. Car. 383; Com. Dig. on the case in Assumpsit G., Conier and Holland's case, 2 Leo. 214; King v. Gillett, 7 M. & W. 55. (b) As to the waiver of an acceptance, see Chapter on Acceptance. (1) This position is perhaps too broad. There are, it appears to me, two qualifications of it. First. The contract must be mutually executory, that is, the consideration executory on both sides. If the consideration on either side is executed, then the party cannot be bound by a mere nude agreement to release his right to performance. That right is a perfect one. Before it is thus complete by execution on his side, the contract is still nude as far as he is concerned, at least so far as this, that he cannot legally compel the execution of the stipulations of the other party. Nudi consensus obligatio contrario consensu dissolvitur, is the language of the Roman law. The cases cited as authority for the text are all of this character. Landon v. Stokes was the case of an agree ment to go a certain voyage before a certain day. It was held that it could be dispensed with without consideration or seal. Conier and Holland's case is a very short and imperfect note; the nature of the contract is not stated. King v. Gillet was the case of mutual promises to marry. The principal other cases cited in Com. Digest is Triswaller v. Keyne, Cro. Jac. 619. That was an agreement that the plaintiff would travel and help the defendant to search for a will. In all cases of this character it seems a reasonable doctrine, that one party may dispense with the performance by the other without a seal and without consideration. But the second qualification equally essential is that this dispensation be accepted, or assented to expressly or impliedly by the other party. The original contract resting for its consideration upon mutual promises-mutual agreement to dispense is an equally good consideration for the rescission. It requires, therefore, neither a release nor satisfaction. It is certainly not in the power of one party to put an end to a contract, nor can one party relying upon a naked dispensation of his part, insist upon the performance by the other of that of which the acts waived formed the sole consideration. In all the cases cited to sustain the text, the waiver before breach was held to put an end to the entire contract, to amount to a rescission of it. It is plain, then, that this doctrine can, and ought to have no application to the contract, arising upon a bill of exchange or promissory note. As between the original parties, if there is no consideration, it is still a nude pact, and there can be no recovery. If there is a consideration, or if the instrument is in the hands of a bona fide holder for value without notice, when it is in all respects as if there was a consideration, to hold that the vested and absolute right of the holder to performance at maturity could be waived without release or satisfaction, would be in the teeth of the best settled authorities and a legion of decided cases. If the other party paid back the consideration, then the contract might be rescinded, but that would be satisfaction. The contract by bill of exchange and promissory note creates a debitum in presenti solvendum in futuro. On this subject, see Ruggles v. Patten, 8 Mass. 480. Crawford v. Millspaugh, 13 Johns. 87. Champlin v. Butler, 18 Ibid. 169, and the note by the American editors to the case of Foster v. Dawber, 6 Welsby, Hurlstone & Gordon (Exchequer) Reports, 838. (See ante, p. 154, note 1.) A satisfaction must be beneficial to the plaintiff.(c) It must come from the defendant or some one who represents him.(d) [*183] *Payment by the debtor himself of a sum smaller than the debt, is no satisfaction.(e) But payment of a smaller sum by a third person has been held to be a discharge of the whole debt. The defendant was drawer of a bill for 187. 3s. 11d., and the plaintiff had taken from the defendant's father 97. in satisfaction of the whole debt. The plaintiff, notwithstanding, afterwards sued the defendant for the balance. But Abbott, C. J., said, "If the father did pay the smaller sum in satisfaction of this debt, it is a bar to the plaintiff's now recovering against the son, because, by suing the son, he commits a fraud on the father, whom he induced to advance his money on the faith of such advance being a discharge of his son from further liability."(f) So although a contract by the defendant himself to pay a smaller sum can be no satisfaction, unless it be negotiable;(g) yet a contract by a third person to do so may be. Thus the taking a bill from one of the two partners may operate as a satisfaction of the joint debt; for the sole liability of one person may, in many instances, be more advantageous than his liability jointly with another.(h) (c) Cumber v. Wane, 1 Stra. 426; Heathcote v. Crookshanks, 2 T. R. 24. (d) Grymes v. Blofield, Cro. Eliz. 541; Edgcombe v. Rodd, 5 East, 294; Jones v. Broadhurst, C. P., T. T. 1850; and it must be fully executed. James v. David, 5 T. R. 141; Bac. Ab. 3; Walker v. Seaborne, 1 Taunt. 526. Mutual promises, with an immediate remedy on them have, however, been considered a good accord and satisfaction. See Com. Dig. Accord. B. 4; Cartwright v. Cooke, 3 B. & Ad. 701; Good v. Cheesman, 2 B. & Ad. 328; but see Bayley v. Homan, 3 Bing. N. C. 915; 5 Scott, 94, S. C. Is not the distinction this? If the mere agreement were intended to be the satisfaction, it need not be executed; if its performance were intended as the satisfaction, it must be executed. See Reeves v. Hearn, 1 Mees. & Wels. 323; Sard v. Rhodes, 1 Mees. & Wels. 153; Lewis v. Lyster, 2 C., M. & R. 707. In the Roman law, a stipulation by which a former obligation was taken away by the substitution of a new one was familiar. It was called Novatio. It exists at this day in the French law. (Code Civil, 1271.) Novation might be either without a change of persons sine delegatione, or with a change of persons cum delegatione. There might be a change of the debtor's person ex promissio, or of the creditor's cessio. (e) Fitch v. Sutton, 5 East, 230; unless the demand be unliquidated. Wilkinson v. Byers, 1 Ad. & El. 106; 3 N. & M. 853, S. C.; Watters v. Smith, 2 B. & Ad. 889; Beaumont v. Greathead, 2 C. B. Rep. 494. (ƒ) Welby v. Drake, 1 Car. & Payne, 557. (g) Sibree v. Tripp, 15 M. & W. 23. (h) Thompson v. Percival, 5 B. & Ad. 925; 3 N. & M. 667, S. C. |