
    Finley B. Heirn vs. Nicholas Carron.
    In an action of trespass, guare clausum fregit, the defendant plead, puis darrein continuance, a plea of accord and a tender of the amount of the accord, together with the costs accrued up to the period at which the accord was to take effect; held, on demurrer to the plea, that it was a good har to the action ; the accord was good, being such an agreement as would support an action for its non-performance, and the plea was properly plead puis darrein continuance.
    
    Such a plea is not filed under the statute (How. & Hutch. 572, sec. 205), which permits a defendant to disclaim any claim or title to the land, the subject of the trespass, and tender amends for the trespass before action instituted.
    In error from the circuit court of Harrison county; Hon. Thomas A. Willis, judge.
    Nicholas Carrón sued Finley B. Heirn to the September term, 1845, of the court, in trespass quare clausum, fregit, and cut down and destroyed trees, &c. to the damage of plaintiff of three thousand dollars. The defendant plead, 1. Not guilty; 2. (In substance) that the trespasses were committed without Finley’s knowledge, and as soon as he became aware of them, he at once ceased; and after the trespasses, and before the suit, and since, he offered and tendered Carrón the full amount, by estimate, of the trees, which Carrón agreed to receive, and which was full amends for the damage done; and that Carrón still refused to receive it. To this plea Carrón demurred, and at the March term, 1846, the court sustained the demurrer, and awarded a respondeas ouster.
    
    The defendant then filed the following plea, to wit:
    “ March term, 1846; Nicholas Carrón v. Finley B. Heirn. And now at this term comes the defendant, and by leave of the court, first had and obtained, defends the wrong and injury when, &c., and for a further plea in this behalf, defendant saith, that as to all of the said plaintiff’s ground of action in this behalf, except so much thereof, as had accrued in costs of court, resulting from this suit, from the commencement up to the 25th day of September, 1845, defendant saith, actio non; because he saith, that after the institution of said suit, to wit, on the 27th day of September, 1845, he, the said defendant, compounded to and with the plaintiff in this action, for the trespass herein complained of, and thereupon agreed to pay him therefor the sum of thirty-six dollars, in full satisfaction thereof, to be paid to plaintiff on the 26th day of December, 1845, and to be responsible for all costs heretofore incurred by reason of said suit; and defendant avers that, in conformity with said agreement and compounding with said complainant, he, this defendant, did, on the 26 th day of December, A. D. 1845, tender the said sum of thirty-six dollars, and then and there, to wit, at the county aforesaid, did offer to pay him the same, according to said agreement, but plaintiff then and there refused, and still doth refuse, to receive the same, though defendant then and there was, and still is, willing to pay the same, and herewith tenders the same sum of money into court, to be paid to said plaintiff; and for all court costs which had accrued in said action up to the said 26th day of December, A. D. 1845, defendant acknowledges himself liable for, and willing to pay the same. Wherefore he prays judgment, if the said plaintiff ought to have or maintain his aforesaid action against him to recover any more, or greater damages than said sum of thirty-six dollars, and the said costs of court up to the 26th day of December, A. D. 1845; and of this he puts himself upon the country. Henderson and Fourni-quet, defendant’s attorneys.”
    The plaintiff demurred to this plea, 1. Because it was no answer to the action. 2. Because it set up matters in bar, which were not in bar of plaintiff’s action. 3. It did not show that the defendant disclaimed any right or title to the lands upon which the trespass is alleged to have been committed. 4. That the plea did not show, that the trespass was by negligence, or was involuntary. 5. It shows that the alleged compounding was made after the institution of suit. 6. That the plea showed that the alleged compounding was merely an agreement to make plaintiff amends. 7. That the plea showed, that the alleged tender was after action brought. 8. And other informalities, &c. apparent in the plea. The record recites that this demurrer was sustained, and judgment quod recuperet entered for plaintiff.
    At the September term, 1846,- the record states, that a trial was had upon the issue of not guilty, which resulted in a verdict in favor of the plaintiff, for fifty-eigb,t dollars, and fifty cents damages, and also costs. Judgment was entered accordingly; and the defendant appealed. ' .
    
      John Henderson, for appellant.
    This plea being literally according to the facts, is not, in technical form, a plea of accord and satisfaction. Literally, it is a plea of accord, and tender of satisfaction, which, in legal effect, we maintain, is equivalent to a plea of accord and satisfaction. And in this aspect, we admit, the plea would have been more formal if satisfaction had been averred, and under which averment we might, doubtless, have given evidence of our tender of satisfaction.
    Nor is it necessary, we should say, that the plea in other matters of form, is strictly correct. But we maintain, it is not amenable to the defects assigned in the demurrer, and this court can notice no other defects (except such as are fatal to the merits of the defence) but those which are “ specially alleged in the demurrer or causes,” &c. Poind. Code, 109, sec. 64; H. & H. 615, sec. 6.
    The first and second causes, that the plea is no bar, &c., mainly challenges ihe merits of the plea, and which we, at present, pass, to note,
    That the third and fourth causes are not well assigned; as this is not a plea of amends, &c,, under the statute.
    The fifth and seventh causes set up, that as the compounding and tender was after suit brought, therefore, it cannot avail. This, as a legal proposition, and on the form of the plea, we deny. We do not plead in bar to the costs which had accrued before the date of compounding.
    
      It is undoubted, the benignity of the taw would not only permit, but encourage an “ accord,” &c. at any time. And if the accord was before plea pleaded, it might be interposed to bar further proceeding in the action, except for costs previously incurred.
    Now no exception is taken oh demurrer, that this plea was not filed within the rule for pleading. And if this court might now conceive it should have been plead, puis darrein continuance, still, no exception of this sort being taken on demurrer, it cannot now be noticed.
    The sixth assignment is not true in fact. Our plea is not merely an agreement to make amends, &c., but is an accord and ténder of satisfaction, as per agreement.
    We take it for granted, therefore, if this plea was in all due form a plea of “ accord and satisfaction,” it would bar the action, and our positiori is, that the plea is equivalent, substantially, to' an accord and satisfaction. The demurrer admits we did, on the date averred, compound and make accord for the amount of damages sued for in this action. It admits we tendered payment of that amount in full, and according to agreement. It admits defendant refused to accept the money so tendered. This tender is persisted in by the plea, and the money brought into court. Now is not this “ satisfaction,” so far as in our power to satisfy, as per the “ accord ” 1 Can defendant be permitted to confess this plea, and yet assume the taw justifies his position 7 Shall not the taw rather foster pacific adjustment than capricious strife 7 Were there no taw for such a plea as this, yet should the court maintain the plea, because consonant with the best spirit and policy of the law,, and promotive of good morality. The record shows no reason why complainant did not, and will not, accept the tender as per his accord. It is our privilege to say, the absence of all reason is better, perhaps, than the true one, were it set forth in replication. The verdict is but a small advance on the tender. But the appellant considers there is a moral right and principle involved, which he is unwilling to yield, until this court shall show its disapprobation of the amicable adjustment, which he has presented as his defence.
    
      But all the principles of our plea axe well adjudged. Tender refused is equivalent in legal intendment to performance. 1 Pet. U. S. R. 465, 467. Plea of readiness to tender and pay, at time and place agreed, is equivalent to actual tender. 17 Mass. R. 392. If tender be evaded and prevented by a party, it is equivalent to tender. 4 Pick. R. 258. Plea of accord and satisfaction puis darrein continuance is good, as expressly decided. 5 Johns. R. 390, 391, 392.
    This decision, of course, answers the objections of the demurrer, that the accord, &c. was after suit instituted.
    But plea of accord and tender held good by the judges seriatim. 3 Johns. Cases, 246, 249,'251, 253, and cases cited, covering all the grounds of our plea.
    These decisions could be readily multiplied, but quantum suf-jicit.
    
    For this error of the court below, we seek reversal of the judgment.
    The judgment on the demurrer to our plea was also erroneous. It should have been respondeat ouster; the statute so requires. To any subsequent or other plea we might file, the law and the court would restrict us to the merits; but to plead further to the merits was our right. 6 S. & M..333, 334.
   Mr. Justice Thacher

delivered the opinion of the court.

In an action of trespass quare clausum fregit, the defendant in the circuit court, pleaded puis darrein continuance, a plea of accord and satisfaction. A special demurrer was sustained to this plea.

Several of the specified causes of demurrer to the plea are not well taken, because the plea is not filed under the statute, H. & H. 572, sec. 105, whereby a defendant may disclaim to make claim or title to the land the subject pf the trespass, and tender amends for the trespass before action instituted.

It is a plea of accord, and a tender of the amount of the accord, together with costs accrued up to the period at which the accord should take effect. This is tantamount to a plea of accord and satisfaction, because an accord, with tender of satisfaction, and refusal, is equivalent to satisfaction. Coit v. Houston, 3 Johns. Cases, 243; 2 Ld. Raym. 122; 2 H. Black. 317; Peytoe's case, 9 Co. 80, 86. There are some cases which hold differently. 5 N. Hamp. 136; 6 Wend. 390. But we are inclined to the first mode of ruling, since acceptance in satisfaction is the essence and gist of the plea, and the refusal or evasion of the tender, in legal intendment, constitutes performance. 1 Pet. 465; 17 Mass. 392; 4 Pick. 255.

A plea of accord and satisfaction may be filed in an action of trespass, (2 Ham. 89; 2 H. & M. 38,) and the accord in this case was good, being such an agreement as would support an action for the non-performance. It could also be pleaded puis darrein continuance. The rule is, that if new matter happens after the last continuance, which would have been a good de-fence before the plea, it may pleaded after the last continuance. Watkinson v. Inglesby et al., 5 Johns. 386; 3 Johns. Cas. 246. The demurrer should have been overruled.

The judgment reversed, demurrer overruled in this c.ourt, and cause remanded.  