Sec 1007

A creditor who elects to take judgment for the fractional part of a debt, may bar himself from the recovery of the remainder.6 There is in such cases a merger of the debt in the judgment.7

Sec 1008

We have already noticed the controversy as to whether a payment by a stranger operates to discharge a debt.8 The same difference of opinion exists on this point as exists on the cognate question whether a stranger can sue on a contract.9 In Eugland and in several states in this country, none but the parties to a contract can sue on it, and none but the parties can extinguish it. - On the other hand, we have rulings in this country that a payment by a stranger extinguishes a debt; and we are told that an accord and satisfaction moving from a stranger, or person having no pecuniary interest in the subject matter, if accepted in satisfaction of the debt, constitutes a good defence in an action against the original debtor.1 But to constitute an extinction of a debt, it is proper that the assent of the debtor should be given.2 In New York it was held in an early case, that payment by a stranger is not a satisfaction, and this case is still unreversed.3 But if the debtor assent, then a case of accord and satisfaction is made out.4

Part payment by way of judgment and execution may satisfy.

Payment by a stranger may be accord and satisfaction.

1 Stead V. Poyer, 1 C. B. 782; Goodrich V. Stanley, 24 Conn. 613.

2 Howard V. Norton, 65 Barb. 161.

3 Costello V. Cady, 102 Mass. 140. See on this topic 1 Smith's L. C. 7th Am. ed. 605.

4 Brooks V. White, 2 Met. 285; Wat-kinson V. Ingleby, 5 Johns. 386; Mas-grove V. Gibbs, 1 Dall. 217; and see Perkins V. Lockwood, 100 Mass. 249.

5 Eidlon V. Davis, 51 Vt. 457.

6 Supra, sec 936; Baker V. Stinchfield, 57 Me. 363; Smith V. Jones, 15 Johns. 229; Willard V. Sperry, 16 Johns. 121; Ingraham V. Hall, 11 S. & R. 78; and cases cited in Wh. on EV. sec 788.

7 See supra, sec 687, 776; Wh. on KV. sec 788.

8 Supra, sec 942.

9 See supra, sec 784 et seq.

1 Day, J., Harvey V. Tama Co., 53 Iowa, 228; citing Leavitt V. Morrow, 6 Ohio St. 71. .

2 See supra, sec 942.

3 "Grymes V. Blofield, Cro. Eliz. 541, that payment of a debt by a stranger is not a satisfaction, has been much criticized and materially limited by subsequent cases in England and elsewhere. Jones V. Broadhurst, 9 C. B. 173; Simpson V. Eggington, 10.

Exch. 845; Leavitt V. Morrow, 6 Ohio, 71. But it has been followed in this state, in Clow V. Borst, 6 Johns. 37; and has not been authoritatively overruled; and we need not now determine whether it should any longer be regarded as authority." Andrews, J., Wellington V. Kelly, 84 N. Y. 547; and see Patillo V. Smith, 61 Ga. 265. 4 Supra, sec 852 et seq., 996 et seq.