https://www.commonlii.org/uk/cases/EngR/1795/

CUMBER vers. WANE.

Trin. 5 Geo. Rot. 173.

[S. C. 1 Sm. L. C. (1903 ed.) 338.   Referred to, Heathcote v. Crookshanks, 1787, 2 T. R. 28. Approved, Fitch v. Sutton, 1804, 5 East, 232. Questioned, Sibree v. Tripp, 1846, 15 M. & W. 31. Followed, Collinson v. Lister, 1855, 20 Beav. 355. See Turner v. London and South Western Railway Company, 1874, L. R. 17 Eq. 566. Impugned, Goddard v. O'Brien, 1882, 9 Q. B. D. 39. Followed, Foakes v. Beer, 1884, 9 App. Cas. 605. See In re Warren, 1884, 53 L. J. Ch. 1017. Distinguished, Ibberson v. Neck, 1886, 2 T. L. R. 427. Referred to, Bidder v. Bridges, 1887, 37 Ch. D. 413. Followed, Underwood v. Underwood [1894], P. 209. See Salton v. New Beeston Cycle Company [1900], 1 Ch. 48.]

Giving a note for 51. cannot be pleaded as a satisfaction for 151.

Error e C. B. in an indebitatus assumpsit for 151. The defendant pleads, that he gave the plaintiff a promissory note for 51. in satisfaction, and that the plaintiff received it in satisfaction. The plaintiff put in an immaterial replication, to which the defen- dant demurred. And after judgment for the plaintiff, it was objected on error, that the plea was ill, it appearing that the note for 51. could not be a satisfaction for 15l. and that where one contract is to be pleaded in satisfaction of another, it ought to be a contract of an higher nature. Hob. 68. 2 Keb. 804. One bond cannot be pleaded in satisfaction of another. 1 Mod. 225. 2 Keb. 851. Even the actual pay- ment of 51. would not do, because it is a less sum. 5 Co. 117. 1 Leon. 19. Much less shall a note payable at a future day.

E contra. It was argued, that the plaintiff's demand consisting only in damages, it was for his benefit to have it reduced to a certainty, and to have the security for it made negotiable. A stated account may be pleaded in bar of an action of covenant. 4 Mod. 43. 1 Mod. 261. 1 Roll. Abr. 122. Formerly indeed executory promises were not held a satisfaction, but the contrary has been since adjudged. Raym. 450. Salk. 76. And now it is held that an award before performance is a bar of the former

action.

Et per Pratt C.J. (on consideration). We are all of opinion, that the plea is not good, and therefore the judgment must be affirmed: as the plaintiff had a good cause of action, it can only be extinguished by a satisfaction he agrees to accept; and it is not [427] his agreement alone that is sufficient, but it must appear to the Court to be a reasonable satisfaction; or at least the contrary must not appear, as it does in this case. If 51. be (as is admitted) no satisfaction for 151. why is a simple contract to pay 51. a satisfaction for another simple contract of three times the value? In the case of a bond, another has never been allowed to be pleaded in satisfaction, without a bettering of the plaintiff's case, as by shortening the time of payment. Nay in all instances the bettering his case is not sufficient, for a bond with sureties is better than a single bond, and yet that will not be a satisfaction. 1 Brownl. 47, 71. 2 Roll. Abr. 470. The judgment therefore must be affirmed (1).

Then it was alleged, that since the time which the Court took to advise, the defendant in error was dead; and therefore they prayed, that they might enter the judgment nunc pro tunc, as was done in the case of Baller v. Delander, Trin. 1 Geo. in B. R. which was ordered accordingly (2).

(1) Taylor v. Baker, 5 Mod. 136. But the present case was denied to be law in Hardcastle v. Howard, H. 26 Geo. 3.    Vide 2 Term Rep. 28.    See also Kearslake v.  Morgan, 5 Term Rep. 513.

(2) Craven v. Henley, Barnes 255. Astley v. Reynolds, post, 917. Tooker v. Duke of Beaufort, 1 Burr. 147. Sir John Trelawney v. Bishop of Winchester, ib. 226, S. P. Vide also 1 Leon. 287. 1 Sid. 462. 1 Vent. 58, 90. But Blachall v. Heal, Com. Rep. 13, contra.