proper replication is the same, in form, as to the plea of nontenure, as before stated.1

§ 24. The non-joinder of proper parties is also pleadable in abatement. If the defendant plead that he made the promise jointly with another, the plea will be maintained by evidence of a promise jointly with an infant; 2 for the promise of an infant is in general voidable only, and not void; and it is good until avoided by himself. If he has avoided the promise, this fact will constitute a good replication, and must be proved by the plaintiff. Where the plea was, that several persons, named in the plea, being the assignees of H., a bankrupt, ought to have been joined as co-defendants, it was held, that proof of their having acted as assignees was not sufficient, and that nothing less than proof of the assignment itself would satisfy the allegation. And if, on the face of

1 Jackson's Plead. p. 100, 101. The form of a general disclaimer, in abatement, is as follows:-"And the said T. comes and defends his right when, &c., and says that he has nothing, nor does he claim to have any thing in the said demanded premises, nor did he have, nor claim to have, any thing therein on the day of the purchase of the original writ in this action, nor at any time afterwards; but he wholly disclaims to have any thing in the said premises; and this he is ready to verify; wherefore he prays judgment of the writ aforesaid, and that the same may be quashed; and for his costs." Ib. p. 100.

2 Gibbs v. Merrill, 3 Taunt. 307; Woodward v. Newhall, 1 Pick. 500. The form of such plea may be thus:- "And the said D. comes, &c., when, &c., and prays judgment of the writ and declaration aforesaid, because he says, that the said several promises in said declaration mentioned, were and each of them was made by one A. B. jointly with the said D.; which A. B. is still alive, to wit, at and this he is.ready to verify. Wherefore, because the said A. B. is not named in said writ and declaration, the said D. prays judgment of said writ and declaration, and that the same may be quashed." Story's Pl. 35; 1 Wentw. Pl. 17; 1 Chitty's Precedents, p. 197; Gould v. Lasbury, 1 C. M. & R. 254; Gale v. Capern, 1 Ad. & El. 102.

3 Fisher v. Jewett, 1 Berton's R. 35. In this case, upon an able review of the authorities, it was held, by the learned Court of the Province of New Brunswick, that an infant's negotiable note was voidable only, and not void. See also 2 Kent, Comm. 234-236; 4 Cruise's Dig. 14, note (2), (Greenleaf's ed.)

4 Pasmore v. Bousfield, 1 Stark. R. 296, per Ld. Ellenborough.

the assignment, it should appear that there were other assignees, not named in the plea, this would falsify the plea.1 If, upon the plea of the non-joinder of other partners as defendants, it is proved that, though the contract was made in the name of the firm, it was made by the agency of the defendant alone, and for his own use, and the proceeds were actually so applied by him, in fraud of his partners, the plea will not be maintained.2

§ 25. In cases of partnership, if one be sued alone, and plead this plea, proof of the existence of secret partners will not support it, unless it also appears that the plaintiff had knowledge of the fact at the time of the contract. If he subsequently discovers the existence of a secret partner, he may join him or not in the action. But if the partnership is ostensible and public, and one partner buys goods for the use of the firm, and in the ordinary course of the partnership business, and is sued alone for the price; proof that the goods were so bought and applied, will support the plea of non-joinder, though the plaintiff did not, in fact, know of the existence of the partnership, unless there are circumstances showing that the partner dealt in his own name. Any acts done by the defendant in these cases, such as writing letters in his own name, and the like, tending to show that he treated the contract as his own and not his partner's, may

1 Pasmore v. Bousfield, 1 Stark. R. 296, per Ld. Ellenborough.

2 Hudson v. Robinson, 4 M. & S. 475. So, if one partner was an infant, and the bill was accepted by the other, in the name of the firm, it has been held, that he was chargeable in a special count, as upon an acceptance by himself in the name of the firm. Burgess v. Merrill, 4 Taunt. 468. See further as to abatement, Infra, tit. ASSUMPSIT, § 110, 130–134.

3 Baldney v. Ritchie, 1 Stark. R. 338. But if the suit is against one secret partner, it is cause of abatement, that another secret partner is not joined. Ela v. Rand, 4 N. Hamp. 307; Story on Partn. § 241; Infra, tit. ASSUMPSIT, § 110, 130–134.

4 Ibid.; De Mautort v. Saunders, 1 B. & Ad. 398; Ex parte Norfolk, 19 Ves. 455, 458; Mullet v. Hook, 1 M. & Malk. 88.

5 Alexander v. McGinn, 3 Watts, 220.

be given in evidence by the plaintiff, to disprove the plea.1 If both partners reside abroad, and one alone being found in this country is sued here, and pleads the non-joinder of the other in abatement, his foreign domicil and residence is a good answer to the plea.2 So, the bankruptcy and discharge of the other, is made by statute 3 a good replication.

§ 26. Where the pendency of a prior suit is pleaded in abatement, the plea must be proved by production of the record, or by an exemplification, duly authenticated. If the priority is doubtful, both suits being commenced on the same day, it will be determined by priority of the service of process. And if both suits were commenced at the same time, the pendency of each abates the other. But the principle

1 Murray v. Somerville, 2 Campb. 99 n.; Clark v. Holmes, 3 Johns. 149; Hall v. Smith, 1 B. & C. 407 ; Marsh v. Ward, Peake's Cas. 130.

2 Guion v. McCulloch, N. Car. Cas. 78. By Stat. 3 & 4 W. 4, c. 42, § 8, the plea itself is bad, unless it shows that the other party is resident within the jurisdiction.

3 Stat. 3 & 4 W. c. 42, § 9. Quære, whether it be good by the Common Law; and see Infra, tit. AssUMPSIT, § 135.

4 Commonwealth v. Churchill, 5 Mass. 174; Parker v. Colcord, 2 N. Hamp. 36.

5 Morton v. Webb, 7 Vermont R. 124.

6 Beach v. Norton, 8 Conn. R. 71; Haight v. Holley, 3 Wend. 258. One form of the plea of prior action pending, is as follows:- -"And the said [defendant] comes and defends, &c., when &c., and says, that he ought not to be compelled to answer to the writ and declaration of the plaintiff aforesaid, because he says, that the plaintiff heretofore, to wit, at the [here describe the Court and Term] impleaded the said [defendant] in a plea of and for the same cause in the declaration aforesaid mentioned; as by the record thereof, in the same Court remaining, appears; and that the parties in the said former suit and in this suit are the same parties; and that the said former suit is still pending in the said Court last mentioned; and this he is ready to verify. Wherefore he prays judgment if he ought to be compelled to answer to the writ and declaration aforesaid, and that the same may be quashed," &c. Story's Pleadings, p. 65; 1 Chitty's Precedents, p. 201. The last averment, that the former suit is still pending, is generally inserted; but it has been held to be unnecessary; it being sufficient if the plaintiff has counted in the first action, so that it may appear of record that both were for the same cause. See Commonwealth v. Churchill, 5 Mass. 177, 178; 39

of this plea is, that the same person shall not be twice vexed for the same cause of action. If, therefore, the first action was against one of two joint contractors, and the second action is against the other, the pendency of the former is not pleadable in abatement of the latter.1

§ 27. In all cases where a fact is pleaded in abatement, and issue is taken thereon, if it be found for the plaintiff, the judgment is peremptory and in chief, quod recuperet.2 The plaintiff should therefore come prepared to prove his damages; otherwise he will recover nominal damages only.

H. 6, 12, pl. 16; Parker v. Colcord, 2 N. Hamp. 36; Gould on Pleading, ch. 5, § 125. But see Toland v. Tichenor, 3 Rawle, R. 320.

1 Henry v. Goldney, 10 Jur. 439.

2 Eichorn v. Le Maitre, 2 Wils. 367; Bowen v. Shapcott, 1 East, 542; Dodge v. Morse, 3 N. H. 232; Jewitt v. Davis, 6 N. Hamp. 518.

3 Weleker v. Le Pelletier, 1 Campb. 479.

ACCORD AND SATISFACTION.

§ 28. IN the plea of accord and satisfaction, the issue is upon the delivery or acceptance of something, in satisfaction of the debt or damages demanded.1 In cases of contract for the payment of a sum of money, the payment of a less sum will not be a good satisfaction; unless it was either paid and accepted before the time when it was to have been paid, or at a different place from that appointed for the payment; but in the case of a simple contract for a larger sum, a negotiable security given for a less sum may be a good satisfaction.2 The acceptance of a collateral thing, of value, whenever and wherever delivered, is a good satisfaction. And if the action is for general and unliquidated damages, the payment and acceptance of a sum of money as a satisfaction, is a good bar.3

1 The plea is, that, "after the making of the promises in the declaration mentioned," (in assumpsit) or, " after committing the said supposed grievances in the declaration mentioned," (in case,) or, “trespasses," (in trespass,) or, "after the making of the said writing obligatory," (in debt, or covenant,) "to wit, on, (&c.) and before (or after) the commencement of this suit, he the said (defendant) delivered to the plaintiff, and the plaintiff then accepted and received of and from the said (defendant) [here describing the goods or thing delivered] of great value, in full satisfaction and discharge of the several promises," [or, damages, or, debts and moneys, as the action may be,] "in the declaration mentioned, and of all the damages by the plaintiff sustained by reason of the non-performance," [or non-payment, as the action may be,]"thereof. And this," &c. The usual form of the replication is by protesting the delivery of the thing, and traversing the acceptance of it in satisfaction. Chitty's Precedents, p. 205, 444 a, 619; Story's Pleadings, p. 120, 156; Stephen on Pl. 235, 236.

2 Sibree v. Tripp, 15 M. & W. 23.

3 Fitch v. Sutton, 5 East, 230; Steinman v. Magnus, 11 East, 390; Co. Lit. 212 b; Cumber v. Wane, 1 Stra. 426. But this case of Cumber v. Wane has recently been limited, in Sibree v. Tripp, 15 M. & W. 23, to the naked case of the acceptance of a less sum in satisfaction of a greater. Thomas v. Heathorn, 2 B. & C. 477; Pinnel's case, 5 Co. 117; Smith v.