Welch v. Lynch , 7 Barb. 380 ( 1849 )

By the Court, Edmonds, J.

To the count on the judgment two pleas were interposed,

1. Accord and satisfaction. Though this may not have been a good plea, because, resting in pais, it was not allowable at common law, and it has been settled that it does not come in under the statute permitting a plea of payment; (Mitchell v. Hawley, 4 Denio, 414;) yet the plaintiff did not demur, but took issue, and the cause went down to trial on that issue.

2. The defendant pleaded specially that the judgment was rendered on a cognovit containing a condition that the judgment should be satisfied out of certain specified property, and no other, and that such property was so applied by means of an execution levied upon it, and sold under that levy. To this plea also the plaintiff did not demur, but he replied, not denying any of the facts above stated, but taking issue on an averment in the plea that on such sale the property sold for $3000. To this the defendant demurred. The demurrer was-overruled and the cause went down to trial on the issue tendered by this replication also.

On the trial the court erred in rejecting the evidence offered of the accord and satisfaction thus pleaded. It was not competent for the court, at nisi prius, to pass on the question whether the plea of accord and satisfaction was good. The plaintiff not having demurred, it could be decided only on motion in arrest of judgment, or upon motion for judgment non obstante veredicto. But the evidence was all competent to prove the issue joined, and the court was wrong in rejecting it.

This upon the 1st plea only.

Upon the second plea, it is insisted that the demurrer ought not to have been overruled, unless the plea was bad in substance ; because the replication was bad, as it tendered an issue on an immaterial averment. If the plea was accord and satisfaction it was doubtless bad ; but if it was a plea of payment, or was a plea that the debt had been levied, under a fi. fa., it was good. Now this plea is not of accord and satisfaction, but is a plea that the debt had been levied on the fi. fa. It contains all the elements of such a plea. It only incidentally mentions the stipulation that satisfaction is to be obtained out of certain property; but it does not aver that the execution was levied óñ that property, but generally, on goods and chattels of great value, viz. more than enough to pay the debt. Upon such a pled the amount levied becomes quite material; therefore the common pleas were right in overruling the demurrer. And thus the cause went down to trial on this issue—whether the debt had been levied on a fi.fa. But here again the court erred, on the trial, in rejecting the evidence offered; as it was entirely competent for the defendant to give the judgment record and the execution in evidence, in order to prove his plea.

The judgment must be reversed, and a venire de novo awarded.

Judgment reversed.