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CHAPTER
XV.

It was formerly held (t), that a party paying a debt could not in general demand a receipt for the money, and therefore that a tender, on condition of having a receipt, was of giving a insufficient (u). It has since, however, been enacted, by receipt. 43 Geo. 3, c. 126, s. 5, that a person to whom money has been paid is bound to give a receipt, and that if he refuse 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 10l. (x). 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 (y). A receipt on a bill or note, duly stamped, does not require an additional stamp (z). And a receipt on a distinct piece of unstamped paper, though it cannot be looked at as evidence of the payment, may be shown to a witness who has signed it to refresh his memory, and enable him to speak to the fact of payment (a).

A receipt on the back of a bill imports, primâ facie, that Effect of receipt. it has been paid by the acceptor (b).

payment.

A tender of part of the amount of an entire sum due on a Tender of partbill or note seems not to be good pro tanto (c), even though the residue be met by a set-off (d).

A defendant, where there is a plea of payment (but not Plea of payment. otherwise), is allowed to reduce the damages by the amount of payment established, though he be unable to prove the plea (e). But if he plead that a note was given for a part

(t) According to the older authorities, the obligor of a single bond is not bound to pay without an acquittance under seal; otherwise of a bond with condition. Bro. Ab. tit. Faits, pl. 8; 1 Vin. Ab. 192; Fortesc. 145.

(u) Green v. Croft, 2 H. Bl. 30; Cole v. Blake, Peake, N. P. C. 179.

(2) See 5 & 6 Vict. c. 82, same duty for Ireland.

(y) Per Ld. Ellenborough, Burbidge v. Manners, 3 Camp. 195.

(z) 55 Geo. 4, c. 184, Sched. Receipts. A receipt may be explained. Graves v. Key, 3 B. & Ad. 313.

(a) Maugham v. Hubbard, 8 B. & C. 14; 2 Man. & R. 5.

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CHAPTER

XV.

Retractation of payment.

Payment under

only of the apparent consideration, and allege payment of
that part, and on issue joined the plea is found against him,
the plaintiff is entitled to a verdict for the full amount of
the note (ƒ).

If the drawee 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 (g). 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 (h). And an indorser may sue on a bill which he
has been induced by fraud to pay on behalf of the party
liable (i).

Money paid under a mistake of law cannot be recovered mistake of fact or back (k); but money paid under a mistake of fact, or even in forgetfulness of a fact, may be recovered back (1).

law.

When payment is deemed to be

complete.

Money laid down on the counter by a banker's cashier in payment of a check cannot be recovered back by action, though it were handed over under a misapprehension of the state of the drawer's account; still less can it be taken back by force from the party receiving it (m). A banker's counter is in the nature of a neutral table, provided for the use of both banker and customer. As soon as the money is laid down by the banker upon the counter, to be taken up by the receiver, the payment is complete (n).

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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 on satisfaction, extinguishment, and suspension, as do not properly fall within either of those two divisions.

CHAPTER
XVI.

A simple contract may be discharged before breach, with- SATISFACout a release and without satisfaction (a). But after breach, TION. unless there be a release, there must be satisfaction (b). Not necessary Accord without satisfaction is no plea, and no action lies on an accord (c).

(a) Langden v. Stokes, Cro. Car. 383; Com. Dig. Action on the Case in Assumpsit, G., Conier and Holland's case, 2 Leo. 214; King v. Gillett, 7 M. & W. 55; Dobson v. Espie, 26 L. J., Exch. 240; 2 H. & N. 79, S. C.

(b) As to the waiver of an ac

ceptance or indorsement, see the
Chapter on ACCEPTANCE.

(c) Allen v. Harris, 1 Ld.
Raym. 122; Lynn v. Bruce, 2 H.
Bl. 117. Unless another person
is party to it.
Henderson v.
Stobart, 5 Exch. 99.

before breach.

CHAPTER
XVI.
Its requisites.

Payment of a smaller sum by third party.

A satisfaction must be beneficial to the plaintiff (d). It has been considered that it must come from the defendant or at least from some one who represents him (e), but at this day probably satisfaction by a stranger would be held good (ƒ).

Payment by the debtor himself of a sum smaller than the debt is no satisfaction (g). 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" (h). Payment of a smaller sum may be a satisfaction where that

(d) Cumber v. Wane, 1 Stra. 426; Heathcote v. Crookshanks, 2 T. R. 24.

(e) Grymes v. Blofield, Cro. Eliz. 541; James v. Isaacs, 12 C. B. 791; Kemp v. Balls, 10 Exch. 607; Edgecombe v. Rodd, 5 East, 294. The effect of satisfaction by a stranger was fully discussed in Jones v. Broadhurst, 9 C. B. 173; and see a very learned judgment delivered by Mr. Justice Maule in Belshaw v. Bush, 11 C. B. 207, to the effect that satisfaction by a stranger is good. See also Chapter XV. 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 M. & W. 323; Sard v. Rhodes, 1 M. & W. 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 expromissio, or of the creditor's cessio.

(f) Belshaw v. Bush, ubi supra.

(g) 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. 494; Cooper v. Parker, 24 L. J., C. P. 68; 15 C. B. 822, S. C.

(h) Welby v. Drake, 1 Car. & Payne, 557; Cooper v. Parker, 15 C. B. 822.

smaller sum is the result of an account stated, including cross demands (i).

CHAPTER

XVI.

So, although a contract by the defendant himself to pay a Engagement by smaller sum can be no satisfaction, unless it be negotiable (j); third party. 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 some instances, be more advantageous than his liability jointly with another (k).

Relinquishing a suit, involving a doubtful point of law, Relinquishing a may be a good satisfaction (1). So, it should seem, is the suit. relinquishment of a claim involving a reasonable doubt, though really unfounded and without suit (m).

operates as

The acceptance of a negotiable security from the debtor When a bill alone may be a satisfaction even of a debt of larger satisfaction. amount (n).

Where a bill or note, on which some person other than the debtor is liable, is expressly given and accepted (o), in full satisfaction and discharge, the liability of the debtor for the original debt will not revive, on the dishonour of the substituted instrument (p). But if it be taken generally on account, or in renewal, the original liability of the debtor revives on its dishonour (q). If, in satisfaction of a note, a second note be given, and in satisfaction of the second note a third, the third note cannot be pleaded as given in satisfaction of the first (r).

The taking of a co-extensive security of a higher nature for a bill or note merges the remedy on the inferior instrument. But it must be strictly co-extensive. Therefore, a specialty given by one maker of a joint and several note does not merge the remedy on the note (s).

(i) Smith v. Page, 15 M. & W. 683; Perry v. Atwood, 25 L. J., Q. B. 408; 6 E. & B. 691, S. C. (j) Sibree v. Tripp, 15 M. & W. 23.

(k) Thompson v. Percival, 5 B. & Ad. 925; 3 N. & M. 667, S. C.; Henderson v. Stobart, 5 Exch. 99; and see Belshaw v. Bush, 11 C. B. 191.

(1) Longridge v. D'Orville, 5 B. & Ald. 117. See Edwards v. Baugh, 11 M. & W. 641; Llewellyn v. Llewellyn, 15 L. J., Q. B. 4.

(m) Cook v. Wright, 30 L. J., Q. B. 321.

(n) Sibree v. Tripp, 15 M. & W. 23.

(0) Hardman v. Bellhouse, 9
M. & W. 596.

(p) Sard v. Rhodes, 1 M. &
W. 153; 1 Tyrw. & Gr. 298; 4
Dowl. 743; 1 Gale, 376, S. C.
(g) See_post, Steadman
Gooch, 1 Esp. 3; Kearslake v.
Morgan, 5 T. R. 513.

V.

(r) David v. Preece, 5 Q. B.

440.

(8) Ansell v. Baker, 15 Q. B.

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