1 See Pettis v. Ray, 12 R. I. 344.

2 See Simmons v. Clark, 56 Ill. 96.

(g) Com. Dig. Accord (b. 4); Good v. Cheeseman, 2 B. & Ad. 328, per Parke, J.; Cartwright v. Cooke, 3 B. & Ad. 701; Evans v. Powis, 1 Exch. 907; Bayley v. Homan, 3 Bing. N. C. 621; Wentworth v. Bullen, 9 B.& C. 850. In Pope v. Tunstall, 2 Pike, 209, it was held, that in debt on a bond, a plea averring that, before suit brought, the obligees in the bond had taken a third person into partnership, and that the defendant, with two securities, executed to the new partnership a bond on longer time, which was accepted and received in full satisfaction and discharge of the bond sued on, is good in bar as a plea of accord and satisfaction.

(h) Thus, a plea that the plaintiff accepted an order of the defendant on a third person for a given sum, in satisfacnot itself be a satisfaction, may, if it be fully performed, at the right time and in the right way (and not merely tendered), become then a satisfaction. (i) If the new promise is executory, and is not binding, it is no satisfaction until it be executed; and although it is to be performed on a future day certain, the promisee may have his original action before the new promise becomes due. (j) But if it be a binding promise, for a new consideration, performable at a future day certain, then the original right of action is suspended until that day comes; if the promise is then duly performed, this right is destroyed ; but, if the promise is not then duly performed, this right revives, and the promisee has his election to sue on the original cause of action, or on the new promise, unless by the terms or the legal effect of the new contract, the new promise is itself a satisfaction and an extinction of the old one. (k) This * may be illustrated by the case of one "who takes a negotiable promissory note, on time, for money which is due or to become due. This note is conclusive evidence of an agreement for delay or credit, and no action can be maintained on the original cause of action until the maturity of the note; (l) if then the note is not paid, an action may be brought upon the note, or on the original cause of action, unless the facts show that the promisee took the note in payment, or the law implies it, as in Massachusetts, Maine, and Vermont. (m) Thus, if A covenants to pay B for property bought, "in manner and at the times following," that is, to give some cash, and the rest in certain promissory notes, all which are given, if the notes are not paid, an action may be brought on the covenant, although it have been literally complied with. (n) tion of the promises, is no bar to an action for the original cause of indebtedness; nor is a plea good as an accord and satisfaction that the plaintiff agreed to accept the note of a third person, which, on being tendered, he refused to accept. Hawley v. Foote, 19 Wend. 516.

(i) Com. Dig. tit. Accord (b. 4).

(j) Com. Dig. tit. Accord (b. 4).

(k) If such is the intent and effect of the new agreement, the remedy on the original cause is wholly gone. See supra, n. (f). And see further Lewis v. Lyster, 2 Cromp. M. & R. 704; Kearslake v. Morgan, 6 T. R. 518; Richardson v. Rickman, cited in Kearslake v. Morgan, 5 T. R. 513; Griffiths v. Owen, 18 M. & W. 68.

(l) Kendrick v. Lomax, 2 Cromp. &

J. 405. In this case, after a bill of exchange became due, and whilst it was in London, where it had been sent to be presented for payment, the person who had indorsed it to the plaintiff came to him with another bill for the same amount, and prevailed on him to take it for and on account of and in renewal of the first bill. Before the second bill became due, and without delivering it back, the plaintiff brought an action on the first bill against the acceptor. Held, that he was not entitled to recover. And see Sawyer v. Wagstaff, 6 Bear. 415; Simon v. Lloyd, 2 Cromp. M. & R. 187.

(m) See ante, p. *624, nn. (q), (r).

(n) Dixon v. Dixon, 7 Ellis & B. 903. See also Leake v. Young. 5 Ellis & B. 955.

It seems that a suit on a written contract, as a note of hand, may be barred by a proof of the execution of a parol contract, entered into concurrently with the written contract, and agreed to be taken in satisfaction of it. (o)

An agreement to cancel and release mutual claims, or to discontinue * mutual suits, is a mutual accord and satisfac tion; and either party may rely on it as a bar against the further prosecution of the suit or claim by the other; (p) but to make this effectual as to mutual suits, the mutual release should be under seal.

Nor is it necessary, as we have seen, that the accord and satisfaction should go so far as to extinguish the original claim. If there be a new agreement, resting on sufficient consideration, and otherwise valid, to suspend a previous claim or cause of action, until the doing of a certain thing, or the happening of a specified event, an action cannot be maintained on that claim in the mean time. But such agreement to suspend or delay will not be inferred from the mere giving of collateral security, with power to sell the same at a certain time if the debt be not previously paid. (q)

To show that the accord and satisfaction were simultaneous, and consisted of the delivery of a certain thing, it must be proved, not only that the thing was delivered, but that it was received in satisfaction. (r) This delivery need not have been voluntary, or intended by way of satisfaction. But if the property of the debtor come lawfully into possession of the creditor, and they then agree that it may be retained by him, and shall be in satisfaction of the debt, this would be regarded as a good accord and satisfaction. (s) The accord and satisfaction must be advantageous to the creditor. (t) l He must receive from it a distinct benefit which

(o) Thus, where upon the indorsement of a note it was agreed by parol between the indorser and the indorsee, that if the former would execute to the latter a deed for a tract of land, the latter would strike out the indorsement and release the indorser from all liability thereon, and the indorser did afterwards execute a deed for the tract of land, which was accepted by the indorsee; held, that proof of these facts was not evidence tending to establish a contract variant from that contained in the written indorsement, and was competent to establish an accord and satisfaction. Smitherman v. Smith, 8 Dev & Bat. 89. So, where P. and the defendant agreed to purchase a vessel together, and the defendant having received $190 of P., for which he gave his note on demand, purchased the vessel in his own name, and afterwards signed a writing which set forth that a portion of the vessel was to belong to P. upon his paying therefor, and acknowledged the receipt of $190 towards such payment, which was admitted to be the same money for which the note was given, and such writing was accepted by P.; it was held, that this was an accord and satisfaction of the note, although it was not cancelled. Peck v. Davis, 19 Pick. 490.