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4 ANN. CAP. 16, PAYMENT POST DIEM. 907 half-yearly in the meantime; non-payment of which is the breach assigned (the principal not having become due); the defendant cannot plead pay- ment of money into Court under 8 & 9 W. 3 c. 11, s. 8 (for the plaintiff has a right to judgment for the penalty, as a security for future breaches), nor under sec. 13 of this Statute (which only authorizes a summary appli- cation to the Court); but he may, under this section, plead, so far as regards the interest alone, a plea of solvit post diem, nor does it alter the ease that part of the principal has been paid, Hodgkinson v. Wyatt, 13 L. J. Q. B. 73. And, on like principles, it should seem that a bond for the payment of money by instalments is also within this section, see Bonafoas v. Rybot, 3 Burr. 1374.27 But should the principal sum become due under the bond, in default of payment of interest at the times appointed, pay- ment of it must be pleaded, Marriage v. Marriage, 1 C. B. 761, for the Statute contemplates the case of a payment that shall be a complete discharge of the security. However, in Husband v. Davis infra, Maule J. observed that that was a very special case. Bonds payable on a con- tingency when the contingency has happened are also within the Statute, King v. England, 9 M. & W. 333. But the defendant* cannot plead 559 that he tendered the money after the day, Bull. N. P. 171, because the Statute requires payment. A plea of solvit post diem, as to part of the money mentioned in the condition, has been held not good on special demurrer, Ashbee v. Pid- duck, 1 M. & W. 564, and see Worthington v. Wigley, 3 Bing. N. C. 454; however, in Husband v. Davis, 10 C. B. 645, it was held that the defendant might plead, as to part, payment post diem and acceptance in, satisfaction; at any rate, it is good after verdict. In McCullough v. Franklin Coal Company, 21 Md. 256, it was held also, that a plea, setting out an agree- ment to compromise a suit pending in the Court of Appeals for valuable considerations in satisfaction of the plaintiff's judgment, and the per- formance of all the conditions, including payment of the money agreed to be paid, by the defendant, was good, by way of accord and satisfaction, to a scire facias on the judgment.28 It appears also from Blackburn v. Beall, 21 Md. 208, that a plea of payment and satisfaction of a judgment, by certain services rendered to and valuable considerations received by plain- tiff from defendant, is good to a scire facias on such judgment; and that upon a plea of payment and discharge, an acquittance, in the above terms, though not under seal, is admissible in evidence; such pleas being informal pleas of payment, and good enough under the Code. Where an action is brought for the penalty of any bond, bill, covenant or contract with pen- alty, the jury may, under the direction of the Court, upon the plea of pay- ment or performance of the conditions or terms of the contract, ascertain by their verdict what sum of money is really and justly due to the plain- tiff, and upon such finding judgment shall be entered by the Court for the penalty, to be released upon payment of the sum so found due, interest 27 But see Preston v. Dania, L. R. 8 Ex. 19; Tuther v. Caralampi, 21 Q. B. D. 414; Gerrard v. Clowes, (1892) 2 Q. B. 11. 28 As to the plea of accord and satisfaction, see cases in note 26 supra and Herzog v. Sawyer, 61 Md. 344. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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