The opinion of the court was delivered by
Davis, J.This case came before this court on exceptions at the last term; when, after a verdict and judgment for the plaintiffs, a new trial was granted. 18 Vt. 594. It now comes before us, in the same manner, after a verdict and judgment for the defendant. The only point, upon which it is now necessary to pass, involves the admission, by the court, of evidence intended to show, that, after the sheriff had become liable for the default of his deputy, Locke, an arrangement had been entered into between one of the plaintiffs and the original debtor in the execution, Cowles, to the effect that whatever balance might be due on the execution should be passed in account between the parties, and the subsequent charge of the court in reference to that evidence. The charge, in substance, was, that, if they found it was agreed that such balance should be transferred to the account of Cowles, and adjusted with their other deal, .and that agreement mutually understood to be in discharge of all other liabilities and remedies, the jury would be at liberty to regard this as payment, or satisfaction, of the execution.
We think the ruling of the court, in admitting this evidence, unaccompanied by evidence to show that this balance had been actually paid or adjusted by a settlement of the current account embracing it, was erroneous,■ as was also the charge embodying the same (principle. A mere executory agreement to pay the execution in (that form could have no other legal effect, than an unexecuted .agreement to pay it by the execution, or indorsement, of a promissory note, or the acceptance of a bill, or even a naked promise to pay the money at a future day. Such agreements can never be relied upon as satisfaction. They must be pleaded in bar of the original ¿liability; nor do they present a distinct, ground of action in themselves.
It is obvious, that such an item would constitute no proper subject of book charge ; the arrangement could not be enforced in that form; besides it is without consideration, and would fail on that ground. Should this defence be allowed to prevail,the plaintiffs would be without legal remedy for the balance due them, unless their debt- *551or should voluntarily coilsent to account for it on séttlfimé'lit. Séé Bryant v. Gale, 5 Vt. 416, where the subject of accord and satisfaction was quite fully considered. The defence set up there, and which was allowed to prevail, was a new contract under seal, to accept a horse, if delivered by a certain time, in satisfaction of the several promises mentioned in the declaration. The case turned entirely upon the circumstance, that the substituted contract was under seal.
The judgment of the county court is reversed, and a new trial ordered.