Ford against Beech
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1848 |
| Date | 01 January 1848 |
| Court | Exchequer |
English Reports Citation: 116 E.R. 693
IN THE EXCHEQUER CHAMBER.
[8521 In the exchequer chamber. (error prom the queen's bench.) . ford againsi BEECH. 1848. In assumpsit by the payee of two promissory for 2001. and 1401., against the maker, defendant pleaded in bar that, after the notes became due, it was mutually agreed, by plaintiff, defendant and A., that A. ahould pay to plaintiff 251. per annum by quarterly payments, and, as long as A. so paid, the right of action on the notes should be suspended ; and that A. had hitherto made the quarterly payments. Held, by the Court of Exchequer Chamber, after verdict for defendant on a traverse of the payment by A., that the plea offered no answer, itiasmueh as, if plaintiff were barred of his action on the notes for any period, his right of action would by law be extinguished altogether, which appeared not to be the intention of the agreement ; and that therefore the agreement must be construed as giving defendant merely a right of action for breach thereof if plaintiff sued while the payments were continued. verdict was entered up as directed in the preceding judgment (a)2 ; and judgment w8 entered on the record, with a consideratutn eat, " that the plaintiff take nothing by bia said writ, but that he be in mercy, &c., and that the defendant go thereof without day, &c. ; " with costs for defendant against plaintiff, and award of execution thereof. The plaintiff brought error in the Exchequer Chamber ; assigning for error, generally, tobat judgment ought to have been given for the plaintiff; and also that judgment ought to have been given for the plaintiff " by reason of the non-performance by the taid William Beech of the promise in the said third count of the said declaration mentioned; that the said finding of the said jury on the said eighth issue (b) joined between," &0. "amounts to a finding in favour of the said John Ford ; [853] and that judgment ought to have been given accordingly. That the said finding is imperfect, uncertain and argumentative, and does not dispose of the whole of the said issue ; and that uo judgment can be given thereupon, or in respect thereof, or upon the said record and proceedings." That the fifth and sixth pleas " are tiot, nor is either of them, sufficient to bar the plaintiff from having or maintaining his action as to the (a)1 Reported by T. Bros, Esq. (a.)2 P. 851. In Hilary terra, 1847 (January 14th), Humfrey requested that the mode of entering the verdict might be reconsidered : but Lord Denman C.J., ion January 26rt, said that the Court adhered to the view which they had taken. (6) The question as to this finding was not decided in the Court of Error, counsel agreeing, in the eourse of the argument, to amend the eighth plea, by pleading it as. to 151. only. 694 FORD V. BEECH 11Q. B.J51. causes of aclion to which those pleas are respectively pleaded. That the said pleas shew an accord only, without satisfaction, or with only a partial satisfaction. That the said pleas attempt to set up, as a defence to the causes of action to which they are pleaded, au accord and satisfaction by a stranger to those causes of action. That the said pleas attempt to set up, as an answer to the causes," &c., "the payment of a leas sum than the amount which they profess respectively to answer." Joinder. The case was argued, in last Michaelmas vacation (a), before Wilde C.J., Maule and E. V. Williams Js., and Parke, Alderson, Bolfe, and Platt Ba. Pashley, for the plaintiff in error (the plaintiff below). The plaintiff is entitled to judgment non obstante veredicto on the issues upon the fifth and sixth pleas. As the sixth plea refers to the fifth, it will be sufficient to confine the argument to the fifth. A right of action cannot, by the voluntary act of the party entitled, be suspended without being extinguished, any more than it can be transferred. Authorities on this point are collected in 2 Williams [854] on Executors, 1124-1127 (4th ed.). That applies to actions by the holders of promissory notes ; Freakley v. Fox (9 B. & C. 130). An exception has indeed been introduced in the case where a note or bill, not come to maturity, has been taken by the creditor; Stedman v. GoarJi (1 Eap. N. P. C. 3, 5), decided t Nisi Prius, by Lord Kenyon, in 1793; Kearlake v. Morgan (5 T. ft. 513), in 1794. But in James v. Williams (d), where the last mentioned case was cited, it was laid down that " this rule is confined to negotiable instruments alone, and it must appear on the face of the plea that the plaintiff took au interest in the negotiable instrument." In Baker v. Walker (14 M. & W. 465, 468), Parke B. said that u promissory note "resembles a specialty (g) :" it was there held that a promissory note, given in consideration of a judgment debt, might be enforced. [Parke B. It wants no consideration. If I give a promissory note to A. for the debt of B., no consideration is necessary; it is payment (A). You do not want consideration in that case, as you do in the case of an agreement.] Price v. Price (16 M. & W. 232), decides that it must appear that the instrument is running, or has been indorsed over by the creditor. Fearn v. Cochrane (4 Com. B. 274), [855] also restricts the exception : there it was contended that a plea which alleged the delivery to, and acceptance by, plaintiff of a promissory note in respect of the causes of action, and also the delivery and acceptance of a warrant of attorney in satisfaction and discharge of the note and of the causes of action, was bad for duplicity ; but it was held not double, because the allegations respecting the note alone did not shew satisfaction or suspension. It is true that a note may be received in full satisfaction of a debt; Sard v. Rhodes (1 M. & W. 153 ; Tyr. & G. 298): a note, expressly shewn to have been so received, though not paid on maturity, is an answer to an action on the debt. So in Good v. Cheesman (2 B. & Ad. 328), which may be cited on the other side, a valid new contract, capable of being immediately enforced, was substituted absolutely for the old one : that was in the nature of satisfaction, as was said by Parke J. The new contract there was an agreement by the creditors to accept payment by the debtor covenanting to pay two thirds of his income, and giving a warrant of attorney: the consideration for any one creditor entering into that agreement was the forbearance of tha rest: and the principle seems to be analogous to that of the cases where a party, by his representation, has induced another to change his situation ; Parke B. in Sheffield & Manchester Railway Company v. Woodcock (7 M. & W. 574, 583), Pitkanl v. Sears (6 A. & E. 469), Gregg v. Wells (10 A. & E. 90). In Alchin v. Hopkins (1 New Ca. 99, 102), Tindal O.J. explained that the point established by Good v. Ctes [856]-man (2 B. & Ad. 328), was " that there has been a substitution of a new agreement, (a) November 26th, 1847. (d) 1.3 M. & W. 828, 833. Affirmed on error in Exch. Ch.; Williams v. James, 2 Exch. 798. (0f) Marius says (p. 1, 2d ed.) that a bill of exchange "is so noble and excellent, that though it cannot properly " (as be conceives) " be called a specialty, because it wanteth those formalities which by ihe common law of England are thereunto required, as seal, and delivery, and witnesses: " yet is "equivalent thereunto, if not beyond." (A) See stat. 3 & 4 Ann. c. 9, s. 7, as to acceptance of a bill. 11 Q. B.IS7. FORD V. BEEOH 695 by mutual consent, and on good consideration, in the stead or place of the old contract." It ia a novatio debiti, which extinguishes the old debt: and on this point, as is shewn by Story, Commentaries on the Law of Promissory Notes, pp. 108, 538 (Boston, 1845), 88. 105, 438, the Roman law coincides in principle with the English. The question ia, always, whether the parties intended by the new contract to extinguish the old. But here the new contract distinctly confines the suspension of the action to the times during whieh the annuity is paid. As, therefore, extinguishment is out of the question, and as a mare suspension cannot be pleaded in bar, the defendant's remedy is a cross action. As to other cases which may be cited. In Struct/ v. The Bank of England (6 Bing. 754; 4 Moo. & P. 639), reported in Bingham, but more fully in Moore and Payne, the plaintiffs had, in effect, agreed to accept a new right of action in lieu of the original one, subject to a condition precedent; and this condition, which was in their own power, they had not performed, though they had received money in respect of the new contract: it was therefore held that the action did not lie. But in the present case...
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