(h) Cort v. Ambergate, etc. By. Co., 17 Q. B. 127.

(i) Above, p. 936.

(k) Frost v. Knight, L. R. 7 Ex. 111, 112; Michael v. Hart, 1902, 1 K. B. 482, 490

(l) Above, pp. 916 sq.

{m) Above, pp. 782, 783.

(n) Avery v. Bowden, 5 E. & B. 714.

18 (2)

These doctrines are illustrated on a sale of land, where, before the day fixed for completion, either party expressly refuses to perform or manifests an absolute and unqualified intention of not performing the contract or some essential part thereof, such as the duty to prove title (s), to convey or pay the price, or where the vendor sells and conveys the land to a stranger to the contract (t), or lets it to a stranger with an option of purchase (u).

Renunciation of a contract to sell land.

The obligation arising from breach of the contract arising on breach of contract. Release of right of action. Accord and satisfaction.

Discharge of the obligation that is, the liability to an action at law at suit of the injured party (x) - may be discharged in the following ways: - First, by a release, which, if gratuitous, must be made by deed (y). Secondly, by accord and satisfaction, which is the injured party's acceptance of something else in discharge of the liability (z). This may, in general, be anything in the way of valuable consideration that ho chooses to take (a); for, as in other cases, the law leaves the parties to make what bargain they please, and does not inquire into the adequacy of the consideration (b). But if the right of action to be discharged be for a certain sum of money (that is, a debt), and not for unliquidated damages (c), the well-known rule applies that the acceptance of a smaller sum of money than that due is not satisfaction of the whole amount owing (d), unless there be some consideration for the discharge of the residue, such as payment at an earlier date than the whole sum is due (e), or the concurrence of other creditors in accepting a composition (f). According to the general rule, however, the acceptance of a negotiable security (even a cheque) for a smaller amount may be a sufficient satisfaction to extinguish the whole debt, the creditor having chosen to take a valuable thing, which is not money, instead of payment (g). Where the right of action is for unliquidated damages, the acceptance of any certain sum of money is a sufficient satisfaction (h). Under the present law, accord and satisfaction may in all cases be well made without deed, even where the right of action discharged was for a certain sum of money payable under a deed (i). Thirdly, by the award of an arbitrator or arbitrators, to whom the matter in dispute has been referred for determination (k). But a debt cannot be discharged in this way, unless it were referred to arbitration, together with some other matter in controversy and of an uncertain nature (l). Fourthly, under the bankruptcy of the party in default, by his obtaining an order for his discharge or by the creditors' acceptance and the approval by the Court of a composition or scheme of arrangement (m). And, fifthly, by the injured party pursuing the right of action to judgment, after which the original obligation is, as a rule, merged in the judgment (n), and the plaintiff is estopped from suing again upon the same cause of action (o).

(o) Avery v. Bowden, 5 E. & B. 714; Johnstone v. Milling, 16 Q. B. D. 460; Cornwall v. Henson, 1000, 2 Ch. 298.

(p) Johnstone v. Milling, Cornwall v. Henson, ubi sup.; above, pp. 726, 936.

(q) Johnstone v. Milling, ubi sup.; Smith v. Butler, 1900, 1 Q. B. 694; above, pp. 745, 938.

(r) Smith v. Butler, ubi sup.

(s) Lloyd v. Collett, 4 Bro. C. C. 469, 4 Ves. 690, n.

(t) Above, p. 496, and n. (i).

(u) Cornwall v. Henson, 1900, 2 Ch. 298.

(x) Above, p. 935.

(y) Edwards v. Walters, 1896, 2 Ch. 157; Wms. Pers. Prop. 223, l5th ed.

(z) Bac. Abr. Accord and Satisfaction; 3 Black. Comm. 15, 16, 306.

(a) Litt. s. 344; Co. Litt. 212 b; Pinnel's case, 5 Rep. 117.

(b) Above, p. 764; Bainbridge v. Firmstone, 8 A. & E. 743; Byles, J., Westlake v. Adams, 5 C. B. N. S. 248, 265.

(c) Wilkinson v. Byers, 1 A. & E. 106.

(d) Cumber v. Wane, 1 Strange, 426; Fitch v. Sutton, 5 East, 230; Foakes v. Beer, 9 App. Cas. 605; Underwood v. Underwood, 1894, P. 204.

{e) Co. Litt. 212 b.

(f) Carey v. Barrett, 4 C. P. D. 379.

(g) Sibree v. Tripp, 15 M. & W. 23; Goddard v. O'Brien, 9 Q. B. D. 37; Bidder v. Bridges, 37 Ch. D. 406. Here it may be noted that, except in the case of an account current of debts and credits or by the effect of the bankruptcy rules as to mutual credits, mutual debts, or mutual dealings, a debt is not discharged by the fact that the creditor owes the debtor an equal sum, notwithstanding that this may be pleaded as a set-off in an action to recover the debt; Wms. Pers. Prop. 222, 223, loth ed.; Be Hiram Maxim Lamp Co., 1903, 1 Ch. 70; Smith v. Betty, 1903, 2 K. B. 317; Re Leeds, &e. Co., 1904, 2 Ch. 45.

Award on arbitration.

Bankruptcy.

(A) Blake's case, 6 Rep. 43 b; Peytoe's case, 9 Rep. 77 b, 79 b; Wilkinson v. Byers, 1 A. & E. 106.

(i) The rule of common law was that an obligation contracted by deed to pay a certain sum of money could not be effectually discharged without deed; but in equity such an obligation might be discharged by accord and satisfaction made without deed; and since the Judicature Acts the rule of equity prevails in this respect; Steeds v. Steeds, 22 Q. B. D. 537; above, p. 910. For the old law, see Nichols' case, 5 Rep. 43; Blake's case, 6 Rep. 43 b; Peytoc's case, 9 Rep. 77, 79; Preston v. Christmas, 2 Wils. K. B. 86; Doctor & Student, Dial. 1, c. 12; stat. 4 & 5 Anne, c. 16, s. 12.

(k) Bac. Abr. Arbitrament and Award; 3 Black. Comm. 16, 306; Chitty on Pleading, i. 488, iii. 105, 7th ed. Written agreements to submit present or future differences to arbitration are now governed by the Arbitration Act, 1889, stat. 52 & 53 Vict. c. 49. Such an agreement is therein referred to as a submission; sect. 27. By sect. 1, a submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a judge, and shall have the same effect in all respects as if it had been made an order of Court. By sect. 4, any legal proceedings commenced in any Court by any party to a submission may be stayed at the instance of any other party to the submission on application made at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, provided the Court or a judge thereof be satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant has from the commencement of the proceedings been ready and willing to do all things necessary to conduct the arbitration. See Baker v. Yorkshire, etc. Co., 1892, 1 Q. B. 144; Kitts v. Moore, 1895, 1 Q. B. 253; Ford's Hotel Co. v. Bartlett, 1896, A. C. 1; Vawdrey v. Simpson, 1896, 1 Ch. 166; Zalinoff v. Hammond, 1898, 2 Ch. 92; Richardson v. le Maitre, 1903, 2 Ch. 222.