Replication, J. did not deliver the said bill to the plt., and CH. 179. offered an issue. §4. So, to an action on a bond, the deft. pleaded a delivery Art. 3. of corn, and the plt's. acceptance in full satisfaction; and 3 Ins. Cl. 217. hoc paratus. Plt. protesting deft. did not deliver the corn; for plea said, he the plt. did not accept the said corn of the deft. in full satisfaction of the said £6, in the condition &c. § 5. So, a bond pleaded as given and accepted in dis- Clift. 199, charge of a promise, and payment accepted after the last 203. continuance. § 6. So, in dower the deft. pleaded, the plt. accepted an Pl. Gen. 283. annuity so, the deft. pleaded, the plt. accepted a promise from a third person, and discharged the deft. Replication, Mod. Ent. 30. did not discharge: That the plt. accepted another note: Lit. Ent. 121 accepted £10, in full of all demands. Bro. R. 93. § 7. If the condition of a bond be to pay money, a horse 3 Ins. Cl. 215. or other thing may be accepted in discharge; otherwise of collateral conditions, as to deliver corn &c. A less sum may be accepted before the day, but not on it; and if a bond 3 Ins. Cl. 216. be to deliver a horse, money will not discharge it; for the Co. Lit. condition in the deed cannot be altered by parol agreement. § 8. This article acceptance is connected with accord and satisfaction in principle: so with discharge; see those heads. 212. Kearslake & § 9. Account stated; paid by note. Form, 2 Ch. on Pl. 5D & E513, 435. Pleaded in bar of the original demand sued; usually al.v. Morgan. as a sham plea to put the plt. to reply, that the note was not paid when it became due. Like plea, the plt. accepted a bill of exchange. Id. 436. § 10. The better opinion is, when a negotiable note is 10 Johns. R. accepted on account of a prior debt, it is prima facie evi- 105, 366. dence of satisfaction. 1 Johns. R. 34; 5 D. & E. 517; 8 Johns. R. 206. ART. 3. Acquittance. on § 1. The deft. says actio non, because after making the See Ch. 15. writing, (one sued on) to wit, at the plt. by a certain writing, the deft. produces, bearing date &c., acknowledged he had received £, with which he confessed himself paid &c., and thereof acquitted the deft., his heirs, executors, and administrators, by the same writing; this he is ready to verify &c. Replication, non est factum, by one, and did not receive, by the other, as to such acquittance. Both pleaded, precludi non, thus-and the said B. 3 Ins. Cl.201. and H. say, they ought not to be precluded from having their action &c., because the said H. says, that the writing of acquittance aforesaid is not his deed, and this he prays may be inquired of by the country, and issue joined; and the said B. says, that the said H. did not acknowledge he had received CH. 179. 3 Ins. Cl. 201, 202. 2 Wils. 86. 3 Ins.Cl. 495. Ch. 121, a. 2, and had of the plt. the said £, or any part thereof, by that writing, as the plt. above alleges, and offered an issue. § 2. As to parcel the deft. pleaded an acquittance from the plt. and as to the residue, non informatus and judgment. Plt. replied, acquittance for another debt. Precludi non, as to said £6, of which the deft. hath pleaded an acquittance; because he says, he received the £6 of the deft. in the said writing of acquittance specified, in part payment of the said £10, whereof he above acknowledged himself satisfied, and not in part payment of the £10, now demanded, as the deft. alleges; hoc paratus &c. Deft. rejoined, that the plt. made the writing of acquittance aforesaid to the deft. in part payment of the £10, now above demanded, as he alleged in his plea, and of this puts &c. § 3. More cases of acquittances pleaded, see Rastel's Entries, 179, 180. So bar pleaded by acquittance, averring the bill could not be found, and that it is the same bill. Plt. replied, not his deed. Other pleas of this kind, Winch. Ent. 306; Bro. Red. 201; Placit. Gen. 5. § 4. See acquittances in sundry cases, Ch. 156. In modern books acquittances are considered pretty much under the head of Releases, as being much the same in principle. Still, however, considerable useful law is found in the ancient books under the head or word acquittance. To debt on a bond without condition, satisfaction must be pleaded by deed. § 5. Further assurance: Declaration on covenant to make it. Bar, not demanded. Deft. said, the plt. did not request. him to seal, and, as his deed, deliver to the plt. the said writing of release, for further assurance of said close &c. to the plt. to be made, as he by his declaration supposes; hoc paratus. This hitherto has been a very rare plea in our practice. As generally, in our conveyances, at least in New England, they are usually made complete in the first in stance. ART. 4. Accord and satisfaction. This is a good plea in s. 10, a. 3, s. bar in account, assumpsit, in case, debt, in replevin, trespass, 14.-Ch. 155. trover, waste, &c.; in fact, it is a good plea, wherever dam1 Esp. 377. ages are demandable by way of amends: Is one of the remedies by the parties, Ch. 2, a. 6; in Covenant, Ch. 121, a. 2, r. 10; a. 3, r. 3, cases; and Debt, Ch. 155, many cases; and the principles on which this plea is pleaded, and our Marquand v. manner of pleading this plea, as in Marquand v. Hale; and Baker v. Lovett, Ch. 35, a. 11. The substance of this plea Hale. 3 Ins.Cl. 203. as formerly pleaded in England, may be seen in the sub- CH. 179. joined note.* (Form of plea, 2 Ch. on Pl. 434.) ART. 5. Award. Art. 5. § 1. It will not be necessary here to add much on this sub- Form as ject, so largely have awards and abitraments already been pleaded in considered, Ch. 2, a. 6, 7, as one of the remedies parties 436. themselves adopt. Ch. 9. a. 16; Ch. 13, as the ground of assumpsit. Ch. 141, as the ground of debt. Ch. 167; Ch. 170, a. 14. Pierce v. Treadwell. However, some matters my here be added on a subject that occupies so large a part of a system of pleadings at The man the 225. ner of pleading an award as in the subjoined note. $2. Note.-More anciently in England, in an action brought, 3 Ins. Cl. defence &c. as to the force, &c. non cul. and as to the residue of the trespass aforesaid, above supposed to be done, actio non &c. Deft. says, that after the time in which the trespass is supposed to be done, viz. on deft. and plt. put themselves on the award, determination, and judgment of A, B, & C, as well of that trespass as of all other trespasses, suits, quarrels, debts, dues, and demands between them, the plt. and deft. before then had, moved, or done, and the arbitrators taking on themselves the burden of * Defence in common form, actio non &c., because protesting he does not The assignacknowledge any thing in the declaration to be true; for plea says, that af- ment of ter the promise sued was made, to wit, at -> on; such a concord debts and was had between the plt. and deft., by the mediation of their friends ami- balances of cably interposing, as well of that promise as of all other trespasses and of- accounts fences &c., between the plt. and deft. before the same (time) had, done, cannot be moved, performed, or pending, to wit, that the deft. should give to the plt. pleaded as an £, in full satisfaction and discharge, as well of the promise whereof the accord and plt. now above complains, as of all other trespasses and offences by the deft. satisfaction before that time to the plt. done; and that the deft. thence against the pit., to debt on as well of that promise as of all other trespasses and offences, was forever a bond; 3 to be discharged and acquitted; and the deft. says, that he then and there Cranch, 293.. gave and delivered to the plt. £———, and the plt. then and there received and accepted the same £—, of the deft. according to the form and effect of the agreement aforesaid; and this he is ready &c. The replication was no such concord, precludi non, because he said no such concord was had between the plt. and deft. in the manner and form he alleged, and offered an issue. 3 Inst. Cl. 203. This ancient way of pleading accord and satisfaction, was much the most lengthy; and was a much more unsafe way of pleading than the modern, as in that the party pleading this plea, has only to allege, and prove he gave $in satisfaction of the demand, and that the plt. accepted that 9 Co. 80, b. sum in satisfaction of it By this concise way of pleading accord and satis. -Stra. 573. faction, called concord in some of the old books, the deft. avoids the hazard -5 Mod. 86 of mispleading the special manner of the agreement, and is not bound to produce evidence to support the particulars of it, but only evidence to prove the payment and acceptance in satisfaction. This short and concise way of pleading an accord, is said by some, not to be properly pleading May be in accord and satisfaction, but pleading satisfaction; as this plea is not often evidence, 2 pleaded, and most matters essential to it have been stated in the chapters Ch. on Pl. p. above mentioned, it is not necessary to add here. 235. CH. 179. 6 Ins. Cl. 17. 1 W. Bl. 463, Soulsby v. Hodgson. Needham v. 1805. awarding in the premises, then and there awarded, determined and adjudged in the form following, to wit, that the deft. should give to the plt. 20s. in full satisfaction of the trespass, above specified; as also all other such trespasses, quarrels, debts, dues, and demands, which 20s. the deft. then and there gave to the plt. according to the form and effect of the award, determination, and judgment aforesaid; hoc paratus &c. 2. The plt. replied, the arbitrators made no such award, precludi non, because he says the arbitrators did not make any such award, order, or judgment of and upon the trespass aforesaid, as the deft. alleged and offered issue. § 4. These pleadings are concise, clear, and simple, and far better than the redundant pleadings on the subject in modern times. Award may be in evidence in assumpsit. 2 Ch. 437. 5. Debt on an award. The plt. on oyer of the bond and condition to perform the award, pleaded no award made between the submission and the time appointed for making the award in the usual form. The deft. replied and stated an award made by the arbitrators, nearly in the above form, ready to be delivered &c. and assigned a breach by the deft., and alleging performance on the plt's. part; and this he is ready &c. Rejoinder as in his plea no award made by the arbitrators &c. &c., and offered issue. 6. If arbitrators join with the umpire in the award, it is but surplusage, and the award is good and may be declared on as his umpirage; and hence it may be pleaded as his umpirage and his sole act. When the defence is the revocation of the ubmission, it is in evidence on non assumpsit. 16 Johns. R. 205, Allen v. Watson. In the following cases, Needham v. Gorham, and Procter v. Walker, &c. it was held a parol submission is good and binding, and may be well pleaded with an award thereon in bar. This case was an award pleaded between the assured and the underwriters on their parol submission by their policy as Court, Essex broker. The action was assumpsit on the policy of insurance. Nov. Term, The deft. pleaded actio non to first and second counts, and said that after making the promises therein and before sued &c. divers disputes had arisen between the assured and insurers (naming them) as to his demands on them &c. by reason of a loss the plt. alleged had come to his vessel &c., and to make a final end thereof the said G. H. F. B. and G. (insurers) by P. C. Brooks, their agent, duly authorized &c., and the plt. at on — submitted themselves to the arbitration of (was by parol) to award &c. of and concerning the premises and all demands he had against said G. H. F. B. and G. respectively by virtue of said policy and promises Art. 5. Co. L. 46. &c. for and by reason of any loss &c., and engaged to abide CH. 179. by &c. So stated the referees accepted, heard, and awarded, the plt. had no demand upon and against them &c.; hoc paratus &c. award was in writing. Replication, no award made and issue offered. In this case there was no evidence of any 1 Bac. Abr. submission but the testimony of one of the referees, or of the 183, 198.agent's authority. This referee testified the underwriters 1 Com. D. never appeared by themselves, that the plt. did not object to 625.-5 Co. Brook's power or to any want of submission. This deemed 51. good evidence of the submission and of the agent's power. But held, the agent must be authorized by deed when the principal must act by deed, but may be by parol where the principal can act by parol, as refer &c. Held, a parol submission is valid between the master of a vessel and his owners as to wages and disbursements, and that the award is good evidence on non assumpsit. Procter v. Walker, Nov. 1811. 1 Phil. Evid. 71.-6 Johns. § 7. But where there is a submission by parol to five persons, it is held, that all five must join in the award; secus, to do R 39, Green an act of a public nature; cited 1 Bos. & P. 242; see Ch. v. Miller, 135, a. 6, s. 26. v. Burton, 8. Where an award is to be ready to be delivered at a 1Ld. Raym. particular day, at a particular place, it may be pleaded that it 533, Doyley was made elsewhere, ready to be delivered at the place. Arbitrators cannot direct the surrender of the arbitration bonds. Marriott. 9. If an award is to be made in writing and ready to be 1 Ld. Raym, delivered by a day named, it is sufficient to plead or shew 115, Marks, that it was made in writing by the day, without adding it was ready to be delivered. At any rate, if to be delivered on request, no objection lies until a request is shewn. A parol submission to arbitration, and a performance of 12 Mass. R. their award, is a bar to an action on simple contract. 134. 10. If an award contains general words sufficient to take 1 Stra. 646, Shelling v. in all matters, the plt. who sues a particular matter shall not Farmer. be admitted to shew any thing was not taken into consideration. This was an action against the deft. for wrongs done to the plt. in India, as the deft. was deputy governor of the East India Company. He pleaded, not guilty, and gave in evidence a release the plt. gave the Company in pursuance of an award, reciting he had sustained several injuries by the company's agent, particularly the deputy governor; therefore the referees award him (plt.) £1000, and ordered the plt. to give a general release. The deft. being no party to it could not plead it; hence the chief justice allowed him to give it in evidence in mitigation of damages. Plt. offered to call the arbitrators to prove they refused to consider the cause of this action as it was for the private personal wrong; but the |