#### Edward Bonaffé *et al. versus*Joel Woodberry.

Such a state of facts may be set forth in a special plea as may be a sufficient bar to the action, although the plea may be incapable of being designated by any tech nical name known in the law.

In an action against the master of a vessel, upon a bottomry bond, the defendant pleaded, that one P was the owner of the vessel and that he had chartered her to one G, to be employed under the command of the defendant; that the defendant, in a foreign port, gave the bond to the plaintiffs for the money therein mentioned, which money was of necessity procured by him of the plaintiffs and was by him, as master, wholly expended in and about the business of G and for the purpose of enabling the ship to sail for this country; that before the arrival of the ship here, G signed two negotiable notes payable to the plaintiffs, and a third, payable to P, and delivered the notes to P, and also assigned certain choses inaction to P, (the whole being less than the amount of the bond); that the same were so made, delivered and assigned to P, and were received by him, for the purpose and upon his undertaking to satisfy the plaintiffs therewith, in respect to their claims on the bond, and to cause the same to be extinguished; that by means of the two notes to the plaintiffs and the choses in action and a sum of money the property of P. he (P) afterwards procured the bond to be assigned to his agent, for his sole use ; and that the action was commenced and prosecuted in the name of the plaintiffs, at the instance and for the exclusive use of P. Upon demurrer it was *held*that the plea was a bar to the action.

Covenant. The plaintiffs declared, that the defendant, at Havre, in France, on March 14, 1829, being master of the ship Covvper toen lying at Havre and bound on a voyage for New Orleans, by his bottomry bond, for certain considerations there in mentioned, purported to hypothecate the vessel to the plaintiffs to secure to them the payment of 13,720 francs within seven days after the arrival of the vessel at New Orleans, together with interest thereon at the rate of six per cent, per annum and exchange at the rate of five francs to the dollar : and that the defendant, as master, covenanted with the plaintiffs, as well for himself as for the owner of the vessel, that he or the owner would pay them the sum above mentioned, within the time specified, and that he further covenanted that he had lawful authority to make the bond ; that the vessel proceeded on her voyage and arrived at New Orleans on May 6, 1829, and at the expiration of seven days therefrom the plaintiffs duly demanded of the defendant the sum of 13,720 francs, together with interest and exchange thereon, which amounted to 2770 dollars, but that, contrary to his covenant first mentioned^ neither the defendant nor the owner of the *462vessel paid that sum ; and the plaintiffs further say, that the defendant had not lawful authority to make the bond, and so he had not kept his covenant last mentioned.

The defendant, in his fifth plea, alleged that on August 5, 1828, Daniel P. Parker of Boston was the owner of the Cowper, and as owner, on that day, by a charter-party made between him and John Grimshaw of New York, for the consideration therein mentioned, demised the vessel to Grimshaw for the term of twelve months from the first day of September then next, to be used and employed under the command of the defendant; that within that term, on March 14, 1829, at Havre, the defendant, as master of the vessel, made and delivered the- bond for the moneys therein stated, which moneys were of necessity procured by him and were by him, at Havre, as master of the vessel, wholly expended and applied in, about and to the business and affairs of Grimshaw and for the purpose of enabling the vessel to leave Havre on her voyage to New Orleans, and without the defendant’s having any personal interest or concern therein ; that on May 4th, 1829, after the making of the bond, and before the arrival of the vessel at New Orleans, Grimshaw, at the request of Parker, made and signed three negotiable notes of that date, by one of which he promised to pay Parker $1000, — by another, to pay the plaintiffs $ 500 in two months, — and by the third, to pay the plaintiffs $ 500 in four months, and then and there delivered the three notes to Parker ; and at the like request of Parker, Grimshaw assigned to him, with power to demand and receive the same to his own use, certain sums of money due to Grimshaw from the American Insurance and Ocean Insurance companies ; — which notes and the sums of money so assigned, were of the value of $2421-46, and were so made and delivered to Parker, and were taken and received by Parker from Grimshaw, for the purpose and with the intent and upon Parker’s undertaking to satisfy the plaintiffs therewith, in respect of their claims and demands for the contents of the bottomry bond, and to cause the same to be extinguished ; and that with the two promissory notes, each for $ 500, and by the assignment of the moneys due from the insurance companies, and with $ 1000 in money, the prop*463erty of Parker, he, Parker, on June 27, 1829, procured the bond to be assigned by the plaintiffs to Davis & Brooks, his agents and attorneys, for his sole use and benefit; and that the plaintiffs have not any title or interest in and to thé subject matter of this suit, but that the same was commenced and is prosecuted in the names of the plaintiffs, at the instance and by the procurement of Parker, and for his sole use.

To this there was a general demurrer and joinder.

The cause was argued at the bar at March term, 1831, and afterwards in writing.

S. *Hubbard*and *Bartlett*in support of the demurrer.

If Parker, by the means furnished by Grimshaw, had taken up the bond, it would afford no defence in this action, because the defendant was a stranger to the agreement between Parker and Grimshaw ; and they were strangers to the bond : — for Grimshaw was not responsible to the defendant for the amount of the bond, because the defendant was not his agent and had no authority to raise money for him on marine interest and upon another person’s vessel ; nor was Parker liable to the defendant, for the money was not applied to Parker’s use. In fact, giving the bond was a violation of Parker’s rights, and the “ necessity ” mentioned in the plea, evidently relates to the affairs of Grimshaw as concerned the cargo, and not to the ship.

But Parker used other means than those furnished by Grimshaw, and so the bond was not taken up under the agreement, which was, to take it up, “ therewith,” that is, with the means furnished ; and therefore the defendant cannot avail himself of the payment, even if he might so have done,, had it been made with the means furnished by Grimshaw.

The defendant cannot avail himself of the damages which Grimshaw might have a right to recover of Parker for nonfulfilment of his engagement; 1. because he is a stranger ; and 2. because the damages may not be co-extensive ; for Parker might show in defence of a suit by Grimshaw, that he could not “ by the means furnished ” accomplish the purpose. *Perkins*v. Gilman, 8 Pick. 229.

A purchase of the bond by Parker could not avail to the *464benefit of the defendant, Parker being a stranger. *Clason*v. Morris, 10 Johns. R. 524.

The terms of the plea show an agency on the part of Parker for Grimshaw, rather than a contract; there was no agreement to indemnify Grimshaw from the bond, in consideration of the notes, &c. ; and Parker therefore, to the extent of the $ 1000 which he was compelled to pay in money, had a right to protect himself by procuring an assignment of the bond. He consents that Grimshaw’s funds, so far as they went, shall be deemed a payment, though upon the technical principles of law the defendant could not avail himself of them.

The plea cannot be supported, because the facts stated will not sustain accord and satisfaction, nor any other established plea in covenant; and because, even if they would, they must be pleaded in the forms known to the law. Accord and satisfaction must be pleaded by parties to the contract. *Grymes*v. *Blofield,*Cro. Eliz. 541; *Clow*v. Borst, 6 Johns. R. 37 ; *Edgecombe*v. *Rodd,*5 East, 294. It must be to the full amount, “ for acceptance of a less cannot be satisfaction of a greater.” *Fitch*v. Sutton, 5 East, 230 ; *Thomas*v. *Heathorn,*2 Barn. & Cressw. 477 ; *Cumber*v. *Wane,*1 Str. 426 ; *Johnston*v. *Brannan,*5 Johns. R. 271 ; Com. Dig. *Accord, A : Heathcote*v. *Crookshanks,*2 T. R. 24.

The plea is not a plea of payment, nor would the facts sustain such a plea. *Fitch*v. *Sutton,*5 East, 231.

. The'facts set out in the plea do not, upon any fair construction, impute fraud, and do not furnish even an equitable defence.

The only form of lav/ through which perhaps the defendant could avail himself of Parker’s agreement and acts, even if they were fraudulent, is by way of estoppel. A familiar example of the application of this doctrine is the case of a grant with warranty, where the grantor had no title at the time, but acquired one subsequently ; where, to prevent circuity of action, the grantor will be estopped from denying that he had title at the time of his grant. But this is founded wholly on the doctrine of warranty. *Jackson*v. *Wright,*14 Johns. R. 193. In this case there is no warranty ; no absolute engagement to extinguish the bond ; but simply an undertaking to *465apply the means furnished by Grimshaw for that purpose, and as before remarked, the damages are not co-extensive with the bond.

*Sohier*and C. *G. Loring,*for the defendant,

to the point that the master of a chartered vessel may make a valid bottomry bond, cited Abbott on Ship. (Story’s edit. 1829,) 125, 126 and notes ; that the Court will look behind the nominal parties to the action and will regard the rights of strangers to the suit, *Brisban*v. *Caines,*10 Johns. R. 45 ; *Willis*v. *Baldwin,*2 Doug. 450 ; *Cockshott*v. *Bennett,*2 T. R. 763 ; *Jackson*v. *Duchaire,*3 T. R. 551 ; *Jackson*v. *Loomas,*4 T. R. 166 ; *Le Page*v. *M'Crea,*1 Wendell, 164; that the facts pleaded constitute a defence, *Howe*v. *Mackay,*5 Pick. 44; *Peabody*v. *Peters,*5 Pick. 1 ; *Hartzel*v. *Reiss,*1 Binn. 289 ; *Knapp*v. *Lee,*3 Pick. 452 ; *Le Page*v. *M'Crea,*1 Wendell, 164.

*August*3a

Putnam J.

delivered the opinion of the Court.* [After stating the pleadings.] The question then is, whether the plaintiffs shall recover for the use of Parker. It appears that the defendant has ho interest in the suit, excepting only in so far as Grimshaw may be unable to respond any sum which the defendant may be held to pay in this action. The real parties eventually interested are Parker and Grimshaw. And it is not a new position in a court of law, that the Court will look behind the parties to the record, to discover the parties in interest, and to administer justice to them, so far as may he, consistently with the rules of the law.

It is contended for the plaintiffs, that the agreement between Parker and Grimshaw cannot in law furnish any defence for the defendant, because they are technically strangers. But it sufficiently appears from the pleadings, that Parker and Grimshaw are the parties in interest The money procured by the defendant was applied for the use of Grimshaw, and it is not material to inquire, whether he originally authorized the defendant to obtain it or not, because Grimshaw has adopted the acts of the defendant. He has made an arrangement for the payment or extinguishment of the bond, as if he had been the *466principal. And Parker had an interest that the bottomry bond uPon l11"5 vessel should be removed. If the defendant was legaily authorized to hypothecate the vessel, then Parker was interested as a surety for Grimshaw, the principal. If it should have been made manifest by the decision of a competent court, that the defendant had no authority to pledge the vessel, still Parker would have sustained considerable trouble and expense in the defence. So it was clearly his interest to have the matter accommodated. His vessel would thereby be liberated from the claim of the plaintiffs.

If the agreement had been made by the parties to the bottomry bond, we think it might have been a good accord and satisfaction, notwithstanding a less sum was received than the amount that might become due. It is not true, universally, that the payment of a less sum shall not be a satisfaction for a greater. As where the money is paid before it becomes due, or at a different place from that appointed for the payment, the law will intend a satisfaction, from the particular advantage or accommodation which the party had from the payment under those circumstances. *PinneVs*case, 5 Co. 117. And *a*fortiori, the exception to the general rule would apply to the present payment of a debt which was contingent and might never become due, as was the case at bar; for the arrange ment for the extinguishment of the bottomry bond was made while the ship was upon her voyage, and when it was uncertain whether she would arrive or not at her destined port. *Vide Peytoe's*case, 9 Co. 79 *b;*Co. Lit. 212 b; Com. Dig. Accord, *A*1, and *B*2 ; Bac. Abr. *Accord and Satisf.*A, Viner, *Accord,*A, *pl.*42 ; *Pinnel's case,*5 Co. 117 *a.*

But this agreement was not made by the parties to the bond, and there might be technical objections to the plea of accord and satisfaction, as well as to the plea of payment. It would not be strictly true, that the bond was paid by the defendant to the plaintiffs.' But it would not follow, that because there are technical objections to the plea of accord and satisfaction, or of payment, the facts admitted by the pleadings may not constitute a defence.

The case of *Sturdy et al., Assignees of*Blackiston, *a Bankrupt,*v. *Arnaud,*3 T. R 599, has a strong bearing *467upon that point. It was an action of debt on a bond from the defendant to the bankrupt, for the payment of an annuity of £ 100 by quarterly payments. The defendant pleaded substantially, that two days after giving the bond, he lent £ 200 to the bankrupt and another, and that it was agreed by a writing not under seal, that the defendant should retain the quarterly payments of the annuity until the £ 200 should be discharged; and that the arrears of the annuity were insufficient to satisfy the same. Blackiston became a bankrupt before the first quarterly payment became due, and his assignees insisted that the annuity should be paid to them, notwithstanding the agreement. They contended that the writing was no defeasance, because it was not sealed ; that there was no lien, because nothing had been pledged; and that it was a contingent agreement, depending on the defendant’s life. But the court held it to be *equivalent*to *solvit ad diem,.*The clear legal inference from this case is, that although there may be technical difficulties and formal objections to the pleas of accord and satisfaction and of payment, there may nevertheless be such a state of facts set forth in a special plea, as may be a sufficient bar, though not pleaded in either of those forms.

We have seen that Parker is not a mere stranger to this transaction. He is interested to have his vessel free from the claims of the nominal plaintiffs upon a bottomry bond. It is true, indeed, that Grimshaw, having received the funds procured by the bond, and so having adopted the act of his agent (the defendant), would be bound to indemnify Parker. Being thus situated, Parker requested Grimshaw to give the notes and assign the property therein set forth particularly, for the purpose and with the intent and upon Parker’s undertaking to cause the bond to be extinguished. The notes, &c. were delivered accordingly. Now if the matter had rested there, in mere agreement between Grimshaw and Parker, it would not have taken away the remedy of the plaintiffs upon the bond. They would not have been at all affected by the agreement, and Grimshaw must have sought his remedy by an action against Parker for the breach of it. But it did not rest in mere agreement between Grimshaw and Parker. Parker has executed his agreement, so far at least as to have made full *468satisfaction to the plaintiffs for the bond. He has acquired possession of the bond. Shall he now be admitted to say that he has procured the bond to be assigned, and not to be extinguished ? We think not. It is in the nature of an estoppel *in*pais; where a man is concluded by matter of fact in the country without writing, as by the acceptance of an estate, &c.; Co. Lit. 352 *a.*No man is permitted to allege contrary to what *he has once*admitted or agreed to. If *one*should become the lessee of his own fee simple estate, he shall not, during the term, deny the title to be in his lessor.

The payer or donor has a right to appropriate the money which he advances. If the former paid with one intent, and the receiver accepted with another, the intent of the payer shall prevail. Vin. Abr. Accord, *C, pi.*20. But there is no good reason to suppose that Parker had a different intent from Grimshaw. The funds were advanced and accepted for the definite purpose of extinguishing the bond. If Parker, in point of fact, obtained the assignment of the bond from the plaintiffs, without disclosing his agreement, the law will not permit him to prove it, because it would be contrary to the declaration which he must have made to Grimshaw, to induce him to part with his funds. Parker must be considered as the agent of Grimshaw in that matter. Suppose the maker of a note, intending to relieve Ms indorser, should give the money to bis clerk to pay to the holder, and the clerk should represent to the holder that he was paying his own money, and induce the holder to indorse the note without recourse, for the use of the clerk ; could it be maintained *that the*clerk could recover against the maker or the first indorser, if those facts were proved ? We think not. Parker having taken up the bond from the plaintiffs, he shall be estopped to say that he procured it for himself and not for his employer, contrary to his undertaking. The- law would, intend that it was received in the performance, and not in the violation of the trust he had undertaken. If the fact were otherwise, the law will not permit him to prove it against his own engagement. So in *Chapman*v. Searle, 3 Pick. 38, the Court would not permit one who had given a writing not under seal, acknowledging that he had received 300 barrels of beef on storage for another, to *469deny that he ever had the beef, or to prove that .he affair was a mere paper arrangement. He was held to be concluded by his undertaking *in pais.*The funds were intrusted to Parker for a particular purpose, and he received the same accordingly, viz. to extinguish the bond for the benefit of Grimshaw. He cannot act for himself in that matter.

A decision on the like principle was made by *Buller*J., in *Weymouth*v. *Boyer,*1 Ves. jun. 416; which was a case somewhat analogous'to the one at bar. There, Bryant being indebted to Weymouth, they agreed that Williams, a factor, should sell 45 hogsheads of tobacco belonging to Bryant, the proceeds to be paid to Weymouth. The factor undertook to do so. He proceeded to sell the goods, but wanted to pay himself first for a claim which he had against Bryant. But *Buller*J. would not permit it. Now Parker stands in the same relation to Grimshaw, that Williams did to Bryant. Williams claimed to retain the money for his own use on account, instead of applying it according to his undertaking for his principal; and Parker makes a similar claim.

So in *Burn*v. *Brown,*2 Stark. Rep. 272, where the master of a ship, at the request of the factor of the owner, delivered the certificate of registry to the factor, in order that he might pay the tonnage duties, it was held that he could not make any further use of it on his own account, and maintain a lien upon it for a general balance due to him in respect of the ship.

How would the case stand if the law were otherwise, and would permit Parker to act for himself during his agency for Grimshaw, in regard to the subject matter intrusted to him ? He would avail himself of the funds furnished by Grimshaw, and he would compel the defendant to pay the bond also. Much litigation and great circuity of action, so abhorrent to the law, would be caused. Parker would recover in the plaintiffs’ name, but for his own use, against the defendant. The defendant would have his action against Grimshaw; and the latter would have his action against Parker for the breach of his agreement. But this would not be so bad, if there were no insolvency in the case. Justice would at length take place. It is not so, however, in the case at bar. It is said, and not *470denied, that Grimshaw has failed. Parker would have the funds furnished by Grimshaw, to set off in any accounts against him, and the defendant would be left to such satisfaction as could be obtained from a bankrupt. The loss would fall eventually upon an innocent agent, who had no personal interest in the matter.

But it has been argued for Parker, that he has a right at least to recover the money which he advanced to the plaintiffs, *viz.*the one thousand dollars, which he paid to the plaintiffs, instead of paying them with Grimshaw’s note for that sum. It is conceded, “ that there is no doubt, that as far as Grim shaw’s means went, it is part payment, and that if Grimshaw is not in a technical sense a stranger, this defendant can and perhaps ought equitably to avail himself of it.” The bond is good for the whole or nothing. There has been no partial extinguishment.

But we think it very clear that Parker accepted the means which Grimshaw furnished, as the consideration for Parker’s • undertaking to cause the bond to be extinguished or cancelled If he could accomplish that object for less, it was for his ad vantage. If he was obliged to pay more, it was to be to his loss. He must be considered as taking the risk, whether the plaintiffs would take Grimshaw’s notes, or whether Parker would be obliged to cash them. The evident construction of the agreement, as disclosed in the plea, is, that if Grimshaw would furnish him with those notes and funds, he would cause the bond to be extinguished. That then became his affair. He relied upon the sufficiency of the means furnished, to enable him to accomplish it. He trusted Grimshaw. And it would be a construction violent and inequitable, to hold the defendant responsible for the sufficiency of the means so furnished by Grimshaw, inasmuch as the plea does not show or state that the funds were delivered and accepted with any such con dition or limitation, but directly the contrary ; and inasmuch as the bond was given by the defendant for the sole benefit of Grimshaw.

We have constantly kept in view the argument for the real plaintiff in interest, that the hypothecation of his vessel for the benefit of the charterer, was a violation of his right. That is *471the admission of Grimshaw. It was to compensate for that injury, that he undertook to make satisfaction according to Parker’s request. If without any such arrangement Parker had procured an assignment of the bond to his own use, it is very clear that he could have enforced his remedy against the defendant, who acted in behalf of Grimshaw, as well as against Grimshaw himself. But having accepted a satisfaction from one, the other would of course be discharged, so far as Parker’s claim extended. The matter then would remain to be adjusted between the master and the charterer. If the defendant, the master, satisfied Parker, the remedy would be against the charterer and owner for that voyage, who had had the benefit of the funds. If the charterer had made satisfaction to Parker, there would have been an end of the matter, for that would operate *instanter*to discharge the master. The facts pleaded specially and admitted by the demurrer, we are of opinion, are equivalent to a payment of the bond before the day. They would clearly be so, if the nominal plaintiffs had received the compensation made to themselves, with an undertaking to cancel the bond therefor ; and we all think, that Parker the assignee has, by his own voluntary acts and agreements, placed himself in the same situation. Then, as has been repeatedly suggested, as between the master (who is the defendant) and Grimshaw the charterer, the latter is the real debtor ; the master is to be regarded as surety. And he may legally avail himself of any thing which his principal has done, to cause the bond to be extinguished.

This case has been twice argued with great ability on both sides. Our learned brother, the chief justice, having been retained as counsel in this cause before his appointment, we rer gret much that we cannot have the aid of his enlightened mind to assist us in our decision. But all the other members of the Court are of opinion, that the fifth plea in bar is good.

*

*Shaw*C. J. did not sit in the case.