position as a creditor of the firm than her husband would have done if he had continued to hold the original notes, and that for that reason payment of her judgment should be postponed in favor of the other creditors. This contention is based upon the theory that Mrs. Tillman is, in legal effect, only the assignee of her husband in the original notes, and hence chargeable with all the infirmities attaching to him as a creditor of the firm. But in our estimation the facts found by the Circuit Court do not sustain that theory. The surrender of the original notes by Tillman, and the execution of new notes by the firm to Mrs. Raben, at his request and with her concurrence, amounted to a novation, and a consequent extinguishment of the original indebtedness to Tillman.

Coming to us through the civil law, three kinds of novation are recognized: First. When the debtor and creditor remain. the same, but a new debt takes the place of the old one. Second. Where the debt remains the same, but a new debtor is substituted. Third. Where the debt and debtor remain, but a new creditor is substituted. In each of these cases the extinguishment of the old debt constitutes the consideration for the new obligation, and has always been held to be sufficient. I Bouvier Institutes, 310; 2 Abbott Law Dict. 184; Adams v. Power, 48 Miss. 450; 1 Addison Con., § 372, et seq.; 1 Parsons Con. 217; Clark v. Billings, 59 Ind. 508; McClellan v. Robe, 93 Ind. 298.

The facts of this case bring it within the third and last class of novations, and requre us to treat Mrs. Tillman as the assignee of a substituted creditor of the firm, and not as the assignee of her husband.

Accepting this view of the character of Mrs. Tillman's claim, it follows that the Circuit Court did not err in placing her upon the same footing with other creditors of the firm.

There was enough that was unusual in the several transactions, which led to the rendition of the judgment in favor of Mrs. Tillman, to attract the attention of other creditors, but there is nothing in the special finding of the facts from which an inference of bad faith can be properly drawn, and as no question is made upon the correctness of the special finding, we must assume that the facts as found by it were fairly established by the evidence.

The judgment is affirmed, with costs.
Filed May 26th, 1884.

CHAPTER X.

ACCORD AND SATISFACTION.

ALLEN . HARRIS.

IN THE COMMON PLEAS, MICHAELMAS TERM, 1696.

[Reported in 1 Lord Raymond 122.]

TROVER for a waistcoat. The defendant pleads, that the plaintiff, in consideration that the defendant at the special instance of the plaintiff assumed to pay to the plaintiff 20s. agreed to discharge the defendant of this trover, etc., and lays mutual promises to perform, etc. The planitiff demurs.

Girdler for the defendant.

The old rule was, that an accord with satisfaction ought to be pleaded executed, that the plaintiff might be sure of something for his damages; but an arbitrement may be pleaded without performance, because the parties may have reciprocal remedies. Then it being now settled, that the parties may have actions upon mutual promises, this accord may be pleaded, though not executed, because each party may have his remedy. 2 Jones, 158; Raym. 450; Case v. Barber; 2 Jones, 168; Wickham v. Taylor. Sed non allocatur. For, per curiam, if arbitrement be pleaded with mutual promises to perform it, though the party has not performed his part, who brings the action, yet he shall maintain his action; because an arbitrement is like a judgment, and the party may have his remedy upon it. But upon accord no remedy lies. And the books are so numerous, that an accord ought to be executed, that it is now impossible to overthrow all the books. But if it had been a new point, it might be worthy of consideration. Judgment for the plaintiff. See 15 Hen. 6; Accord 1; 3 Cro. 304; Balston v. Baxter; Hil. 7 Edw. 4, p. 6; Stile, 245, 252.

BEAUMONT v. GREATHEAD.

IN THE COMMON PLEAS, JANUARY 14, 1846.

[Reported in 2 Common Bench Reports 494.]

DEBT for £110 upon a promissory note for £50, dated April 20th, 1842, payable two months after date, with counts for £30 money lent, and £30 upon an account stated. Damages £50.

Plea, that, after the accruing of the causes of action, and every of them, and before, etc., to wit, on, etc., the defendant paid to the plaintiff, and the plaintiff accepted and received from the, defendant, divers sums of money, amounting to all the moneys in the declaration mentioned, in full satisfaction and discharge of the debt and damages in the declaration mentioned-verification.

Replication, traversing the acceptance in satisfaction.

The cause was tried before Tindal, C.J., at the sittings in London after last Trinity Term. The action was brought in the name of Beaumont, as trustee for a loan society, to recover principal and interest alleged to be due upon a joint and several promissory note given to the society by one Green, as principal debtor, and the defendant and one Chittleborough, as sureties.

Green being called in support of the plea, stated, that at various times after the note became due, he had made payments on account thereof, amounting in the whole to £50, to one Boatman, the secretary of the society.

On the part of the plaintiff it was submitted, that, assuming Green's statement to be true, it did not support the plea; that, at all events, the plaintiff was entitled to a verdict for the interest accruing after the maturity of the note; and that the payment ought to have been pleaded according to the fact, as a payment made, not by the defendant, but by Green.

It was left to the jury to say whether or not Green really did pay the £50 to Boatman. A verdict was found for the defendant, with leave to the plaintiff to move to enter a verdict for nominal damages, if the Court should be of opinion that he was entitled to interest.'

Byles, in Michaelmas Term last, obtained a rule nisi accordingly.

Dowling now showed cause.

Byles (with whom was R. Miller) in support of the rule.

1 No question was raised whether a payment of £50 could satisfy an admitted precise demand of £110, or whether the jury were justified in wholly negativing the damages (not exceeding £50) confessed by the plea.