Sec 997

An acceptance of an amount less than a debt cannot operate as a discharge of the debt unless there be a sealed release of the residue, or some additional consideration as an equipoise to the residue released. The rule is that payment of a less sum in satisfaction of a greater debt at the time liquidated, only discharges pro tanto;l and, although with occasional doubts as to the reasonableness of the position, it is held in many cases that Acceptance of less amount is no satisfaction without a release.

And see for other cases supra, sec 852-3; Norris V. U. S.; 14 Ct. of Cl. 354; Murphy V. U. S., 14 Ct. of Cl. 508.

1 Supra, sec 494, 504, 935; Pownal's case, 5 Co. 117 a; Cumber V. Wane, 1 Strange, 426; Smith's L. C. 7th Am. ed. 595 et seq.; Down V. Hatcher, 10 A. & E. 121; Mitchell V. Cragg, 10 M. & W. 367; Orme V. Golloway, 7 Ex. 544; Gifford V. Whittaker, 6 Q. B. 249; Baillie V. Moore, 8 Q. B. 489; Bailey V. Day, 26 Me. 88; White V. Jordan, 27 Me. 370; Goodwin V. Follett, 25 Vt. 386; Harriman V. Harriman, 12 Gray, 341; Warren V. Hodge, 121 Mass. 106; Warren V. Skinner, 20 Conn. 559; Pabodie V. King, 12 Johns. 426; Bunge V. Koop, 48 N. J. 225; Ryan V. Ward, 48 N. Y. 204; Watts V. French, 19 N. J. Eq. 407; Rising V. Patterson, 5 Whart. 316; Jones V. Ricketts, 7 Md. 108; Hardey V. Coe, 5 Gill, 189; Mc-Kenzie V. Culbreth, 66 N. C. L. 534; Eve V. Moseley, 2 Strobh. 203; Pearson V. Thomason, 15 Ala. 700; Vance V. Lukenbill, 9 B. Mon. 249; Bryan V. Brazil, 52 Iowa, 350; Lankton V. Stewart, 27 Minn. 346; see Clifton V. Litchfield, 106 Mass. 34. For other cases, see supra, sec 494, 504.

In Cumber V. Wane, 1 Str. 426, it was held that giving a note for 5l. is not a satisfaction for 15/. The decision has since been followed by innumerable cases, though the reason of Pratt, C. J., that the satisfaction "must appear to the court to be reasonable," "or at least the contrary must not appear, as it does in this case," is no longer regarded as good, since it is now agreed on all sides that the courts will not judge of the sufficiency of a consideration. Supra, sec 517. In the London Law Times for May 6, 1882, we have the following: "It is really time that the old rule in Cumber V. Wane, 1 Str. 425; 1 Smith L. C. 7th edit. 341, was abolished. Mr. Pollock speaks of the rule having committed the English law to ' an absurd paradox.' In Sibree V. Tripp, 15 M. & W. 23, that case was 'considered,' and the court, as it could not overrule it, declared that the facts were not sufficiently stated to make it a binding authority. In God-dard V. O'Brien, which will be found in our reports of last week, 46 L. T. N. S. 306; L. R. 9 Q. B. D. 39, Mr. Justice Grove declared that Cumber V. Wane 'was entitled to every respect, although we may not see the reason on which it is founded.' Of course he distinguished the case before him from that respectable, but unreasonable, old case. Surely this needs legislation." Fitch V. Sutton, 5 East, 230, put the question on a firmer basis. The suit was indebitatus assumpsit for goods sold and delivered. The defendant, it appeared, owed the plaintiff 50/., and compounded with his creditors, paying them seven shillings in the pound, and at the time of such payment to the plaintiff, to adopt Mr. Smith's at common law, the payment of a smaller sum, without a release under seal, or without some additional consideration as hereinafter noticed, is no satisfaction of the claim for the entire amount, though there is a receipt in full.1 "The payment of part of an acknowledged debt after its maturity has often been held to be no sufficient consideration for a release, not under seal, of the remainder. It has no effect as an accord and satisfaction, and rests upon no legal or valid consideration."2 summary, promised to pay him the residue of his debt, when he should be of ability so to do, which he was proved to have been before this action was brought. On the other hand, the defendant produced a receipt signed by the plaintiff, for the composition, and which purported to be in full of all demands. And it was urged that the receipt was either a discharge of the promise, or that the promise itself was void, as being a fraud upon his other creditors, or that at all events, the plaintiff ought not to have declared upon the original cause of action, but specially upon the new promise to pay when of ability. But the court in banc, after a verdict for the defendant, made a rule for a new trial absolute on the express grounds that the acceptance of 19/. 10s. could not be a satisfaction for a debt of 50/. "There must be some consideration," said Lord Ellenbor-ough, "for the relinquishment of the residue, something collateral to show the possibility of benefit to the party relinquishing his further claim, otherwise the agreement is nudum pactum. But the mere promise to pay the rest, when of ability, puts the plaintiff in no better condition than he was before." Cumber V. Wane was then referred to as authoritative. To the same effect are cited Heathcote V. Crook-sanks, 2 T. R. 24; Lynn V. Bruce, 2 H. Bl. 317; Mitchell V. Cragg, 10 M. & W. 367; and see in further recognition of same principle, Latapee V. Pecholier, 2 Wash. C. C. 180; Dederick V. Leman, 9 Johns. 333; Seymour V. Minturn, 17 Johns. 169; Moss V. Shannon, 1 Hilt. 177; Curtiss V. Martin, 20 Ill. 575. That the rule is artificial and that any additional element of consideration will validate such a settlement, see infra, sec 1001. As to Maine statute, see Weymouth V. Babcock, 42 Me. 44.

1 Down V. Hatcher, 10 A. & E. 121; Lewis V. Jones, 4 B. & C. 513; White V. Jordan, 27 Me. 370; Lee V. Oppen-heimer, 32 Me. 254; Wheeler V. Wheeler, 11 Vt. 60; Twitchell V. Shaw,.

10 Cush. 48; Tuttle V. Tuttle, 12 Met. 551; Harriman V. Harriman, 12 Gray, 341; Grinnell V. Spink, 128 Mass. 25; Dederick V. Leman, 9 Johns. 333; Seymour V. Minturn, 17 Johns. 169; Gei-ser V. Kershner 4 Gill & J. 305; Eve V. Moseley, 2 Strobh. 203; and cases cited in former notes to this section and to sec 494, 504, 935.

2 Ames, J., Lathrop V. Page, 129 Mass. 21, citing Harriman V. Harriman, 12 Gray, 341; Jennings V. Chase, 10 Allen, 526. In Miller V. Hatch, 72 Me. 481, the cases are thus reviewed by Appleton, C. J.: "In Clifton V. Litchfield, 106 Mass. 34, it was held that an executory contract, by way of compromise to discharge a disputed, unliquidated claim, by the giving of the debtor's promissory note, for a sum less than the amount actually due, was not a bar to a suit upon the original de-.