| N.Y. Sup. Ct. | May 15, 1838
The 3d plea of Lamont and the 2d plea of Daniels are substantially alike. So are the replications to those pleas. It is unnecessary to examine the replications, for the pleas are good for nothing. The defendants have not pleaded payment; but have pleaded that the plaintiff agreed to take Munro, a third person as paymaster of the note. Such a plea should never have found its way upon the record, it should have been struck out as frivolous.
The 2d plea of Lamont and the 3d plea of Daniels are substantially alike, and so are the replications to those pleas. The pleas are bad. Beyond the formal commencement and conclusion, they have few of the qualities of good special pleas. Without noticing minor objections, these seem to have been intended as pleas of accord and satisfaction ; and as such they are utterly defective, in the first place, the satisfaction, if any, moves from a stranger—not from the defendants ; and a plea alleging such a satisfaction has been held bad. Clow v. Borst, 6 Johns. R. 37. Edgcombe v. Rodd, 5 East, 294. This is a question of pleading; and although the matter set up by the defe'ndants may amount to a good bar when given in evidence, it does not follow that the pleas can be maintained. But there is a more decisive objection to the pleas. An accord executed is a good bar : but an accord executory is not. Russell v. Lytle, 6 Wend., 390" court="N.Y. Sup. Ct." date_filed="1831-01-15" href="https://app.midpage.ai/document/russell-v-lytle-5513574?utm_source=webapp" opinion_id="5513574">6 Wendell, 390. Com. Dig. Accord, b. 4. The best and most secure form of pleading such a defence, is by way of satisfaction. 9 Co. 80. Peytoe’s case. The very point of the plea is, that the plaintiff accepted the thing in satisfaction. Young v. Rudd, Carth. 347. 2 Chit. Pl. 482, precedents, and note (h.) Drake v. Mitchell, 3 East, 251. Had it been alleged that the plaintiff accepted and received the staves in satisfaction, it may be that the jury on proof of the facts stated in the pleas, would have been warranted in finding the issue in favor of the defendants. Anderson v. The Highland Turnpike, 16 Johns. R. 86. But it does not follow that a plea is good, because it details evidence enough to bar the action. Facts and not evidence should be pleaded ; and they must be directly and positively alleged.
The only objection to the replications is, that they tender an issue upon a point which is not, but should have been presented by the pleas. Had the pleas been in proper form, the replications to them would have been good.
The objection that the jury have not passed upon the issue on Lamont’s fourth plea, is answered by the case of Law v. Merrills, 6 Wend., 268" court="None" date_filed="1830-12-15" href="https://app.midpage.ai/document/law-v-merrills-6118979?utm_source=webapp" opinion_id="6118979">6 Wendell, 268.
Judgment affirmed.