defendant in full satisfaction and discharge of the said several promises and undertakings, and of all the sums of money in the said declaration mentioned. And this, &c.— [Conclude with a verification, as ante, 907, sixth form.] [Actio non, as ante, 906, first form, to the asterisk.] Because he says, that after the making of the said several promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said plaintiff, against him the said defendant in this behalf, [or, if by original, or in C. P. " before the commencement of this suit,"] to wit, on, &c. (date of bond) at, &c. (venue) aforesaid, he the said defendant made and sealed, and as his act and deed delivered to the said plaintiff, his the said defendant's, certain writing obligatory, in the penal sum of [£1000,] of lawful money of Great Britain, conditioned for the payment of [£500,] of like lawful money, and interest for the same, by the said defendant, to the said plaintiff, at a certain time therein mentioned, and now elapsed, and which said writing obligatory the said defendant then and there delivered to the said plaintiff; and the said plaintiff then and there accepted and received the same of and from the said defendant, in full satisfaction and discharge of the said several promises and undertakings in the said declaration mentioned, and of all damages and sums of money thereupon due and owing, or accrued. And this, &c.-[Conclude with a verification, as ante, 907, sixth form.] [First plea, non-assumpsit, as ante, 908; second plea, as follows.]-And for a further plea in this behalf, as to the a If there be several counts in the declaration, and the plea, professing to answer the whole, states that the goods, &c. were delivered and accepted in satisfaction" of the cause of action" it would be bad, 2 Chit. Rep. 303. If a writ was sued out, and the accord and satisfaction took place after that time, the plea should aver that the plaintiff accepted the thing in satisfaction of the costs and damages sustained by the nonperformance of the promises. 5 B. & A. 886. 1 D. & R. 546, S. C. and see form in trespass, b See supra, note ". See form, Lil. Ent. 121. This plea is sustainable, 5 T. R. 513.-10 Mod. 37. Acc. 1 Ken. Rep. 250, 391.—1 Burr. 9, S. C. contra, but in that case the note was not negotiable, not being payable to order. It has been generally adopted as a dilatory plea, particularly where the plaintiff has declared only on the common counts, and a note or bill has been given but not paid when ACCORD AND SATISFACTION. The like of a satisfaction. bond given in [ 926 ] Account stated, acceptance of de and delivery and fendant's promissory note c ACCORD AND SATISFACTION. sum of £(the sum for which the note was given,) parcel of the said several sums in the said declaration mentioned, the said defendant, by leave of the court, here for this purpose first had and obtained, according to the form of the Statute in such case made and provided, says, that the said plaintiff' ought not to have or maintain his aforesaid action thereof against him, because he says, that after the making of the said promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said plaintiff, against the said defendant in this behalf [or, if in C. P. or by original," before the commencement of this suit,"] to wit, on, &c. (date of note,) at, &c. (venue) aforesaid, an account was had and stated, by and between the said plaintiff and the said defendant, of and concerning the said several sums of money in the said declaration mentioned, and upon that accounting he the said defendant was then and there found in arrear and indebted to the said plaintiff, in the said sum of £-* (the amount of the note,) for which said sum of £- he the said defendant then and there made and delivered to the said plaintiff, his certain promissory note in writing, bearing date a certain day and year therein mentioned, to wit, the day and year last aforesaid, whereby he the said defendant promised to pay to the said plaintiff, or his order, [two] months after the date thereof, the said sum of £- wherein he the said defendant was so found in arrear and indebted to the said plaintiff as aforesaid, and the said plaintiff then and there accepted and received the said note for and on account of the said sum of £- parcel of the said sums of money in the said declaration mentioned, and by reason thereof he the said defendant then and there became and still is liable to pay the said sum of £— in the said promissory note mentioned, according to the tenor and effect of the said note. And this, &c.-[Conclude with a verification, as ante, 907, sixth form.] due, so as to put the plaintiff a In general the payment of a smaller sum cannot be pleaded as a satisfaction for a larger. Therefore the plea should be pleaded only to the amount of the sum in the note or bill, as in the above form, or else it should be averred that the defendant was not indebted to plaintiff in more than that sum; see 2 B. & Cres. 477. ACCORD AND SATISFACTION. The like that de a bill of exchange payable to a third person. [ 927 ] [Same as in the last preceding, form, to the asterisk.]For which said sum of £- the said plaintiff afterwards, to wit, on, &c. (date of bill,) at, &c. (venue) aforesaid, according fendant accepted to the usage and custom of merchants, made his certain bill of exchange in writing, bearing date a certain day and year therein mentioned, to wit, the day and year last aforesaid, and thereby then and there required the said defendant [two] months after the date thereof, to pay to [E. F. or] his order, the sum of £- for value received, which said. bill of exchange the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, upon sight thereof accepted, according to the said usage and custom of merchants, and the Statute in such case made and provided, for and on account of the said sum of £- parcel of the said several sums in the said declaration mentioned; and by reason thereof, and according to the said usage and custom of merchants, he the said defendant then and there became, and was still and is liable to pay to the said [E. F.] or his order, the said sum of money in the said bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of his the said defendant's said acceptance thereof. And this, &c.-[Conclude with a verification, as ante, 907, sixth form.] ARBITRAMENT. award. [First plea, non assumpsit, as ante, 908; second plea, Arbitrament and actio non, as ante, 906, third form.]-Because he says that after the making of the said several promises and un See form and law, Wightw. 33.—Co. Lit. 212 b.-5 T. R. 513. See note to the former precedent. As to this plea in general, see Com. Dig. Accord, D. Bac. Ab. Arbitrament, G. Arbitrament and award may be given in evidence under the general issue, non assumpsit; but it is frequently advisable to plead it, in order to compel the plaintiff in his replication to take issue on some particular part of the plea, and thereby admit the residue, see the forms, 3 Wentw. Index, 8.Morg. Prec. 235, 237, 508.Lutw. 52.-Clift Ent. 495.Kyd on Awards, 2d edit. 465. Watson on Awards, 148. Where, during the progress of ARBITRAMENT. dertakings in the said declaration mentioned, and before the day of the exhibiting of the bill of the said plaintiff, against the said defendant in this behalf, [or, if in C. P. or by original," before the commencement of this suit,"] to wit, on," &c. (date of submission) at, &c. aforesaid, the said plaintiff and the said defendant submitted themselves [here state the mode of submission, which may have been thus:]—(that is to say) by two mutual bonds of arbitration, bearing date respectively, to wit, the day and year last aforesaid, to the arbitration of, and engaged in all things well and truly to stand to, obey, abide, perform, fulfil, and keep the award, order, arbitrament, final end and determination of E. F. and G. H. arbitrators, indifferently elected and named, as well on the part and behalf of the said plaintiff as of the said defendant, to arbitrate, award, order, judge and determine of and concerning all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, at any time theretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by and between the said parties, or either of them, so as the said award should be made by the said arbitrators, under their hands, and ready to be delivered to the parties in difference, or such of them as should desire the same on or before, &c. Time enlarged. then next; which time for making the said award was afterwards, and before the time for making the same expired, to wit, on, &c. (day of first enlargement) at, &c. (venue) aforesaid, by consent of the said plaintiff and the said defendant, enlarged until, &c. then next, and it was then and there agreed by and between the said plaintiff and the said defendant, that the award made before that time between them should be binding and conclusive between them; which lastmentioned time for making the said award was afterwards, and before the said enlarged time for making the said award had elapsed, to wit, on, &c. (day of last enlargement,) Time further enlarged b. remedies against each other, Caldwell, 211.-Watson, 149. a This is necessary, see Cro. Eliz. 66. b These averments of enlargement must agree with the fact, and if there was no enlargement, should, of course, be omitted. at, &c. (venue) aforesaid, by consent of the said plaintiff and ARBITRAMENT. the said defendant, further enlarged until, &c. then next, and it was then and there agreed, between the said plaintiff and the said defendant, that the said award before that time made between them, should be binding and conclusive between them. And the said defendant further saith, that the said arbitrators, before the expiration of the said last-mentioned time limited for making their award, to wit, on, &c. (date of award,) at, &c. (venue) aforesaid, took upon themselves the burthen of the said arbitration, and having duly examined and considered the subject-matters in dispute between the said plaintiff and the said defendant, they the said arbitrators did make their award in writing under their hands, of and concerning the premises, and of and concerning the said promises and undertakings in the said declaration mentioned, and ready to be delivered to the said parties in difference, and did thereby then and there award that, &c. [here set forth the award] as by the said award bearing The award. date, &c. reference being thereunto had, will more fully appear. And this, &c.-[Conclude with a verification, as ante, 907, sixth form.] [Actio non, as ante, 906, first form, to the asterisk.]— Because he saith that the said plaintiff heretofore, to wit, a As to the averment of performance, see ante, 927, n. See forms, 1 Rich. C. P. 205.-2 Rich. C. P. 19, 20.Morg. 252, 3.-Lil. Ent. 158; see a form of judgment recovered by defendant, by verdict in trespass, post, 1062; a form of judgment recovered in an inferior court in Wales. 3 B. & Cres. 235; a form of judgment recovered at St. Christopher's abroad. 4 B. & Cres. 625; and as to this plea in general, and replication thereto, see 1 Saund. 92, n. A judgment recovered may be given in evidence in assumpsit, under the general issue. 2 Stra. 733.-1 Saund. 67.-2 Bingh. 377. Lord Tenterden, however, in a recent case, refused to admit evidence of a judgment recovered under [ 929 ] JUDGMENT RECOVERED. Judgment re C. P. or Exche covered in K. B. quer |