Sec 935

A receipt of part of a debt operates only to discharge the debt pro tanto, and does not, without an agree- Receipt for less sum may extinguish debt, if there be distinctive consideration.

In other cases the law divides equitably.

1 Donaldson V. Cothran, 60 Ga. 603.

2 Gordon V. Hobart, 2 Story, 264.

3 U. S. V. January, 7 Cranch, 572; U. S. V. Wardwell, 5 Mason, 85; Gass V. Stinson, 3 Sumner, 98; U. S. V. Kirk-patrick, 9 Wheat. 720; U. S. V. Eck-ford, 17 Pet. 251; 1 How. 250; Patti-son V. Hull, 9 Cow. 747; Seymour V. Van Slyck, 8 Wend. 403; Smith V. Lloyd, 11 Leigh, 512; McCauley V. Holtz, 62 Ind. 205; Applegate V. Koons, 74 Ind. 247; Callahan V. Boaz-man, 21 Ala. 246; see Mahaiwe Bk. V.

Peck. 127 Mass. 298; Williams V. Vance, 9 S. C. 344.

4 Pattison V. Hull, 9 Cow. 747; cited supra, sec 929.

5 Story V. Livingston, 13 Pet. 360; Dean V. Williams, 17 Mass. 417; People V. New York, 5 Cow. 331; Spires V. Hamot, 8 W. & S. 17; and cases cited 2 Ch. on Cont. 11th Am. ed. 1114.

6 Barrett V. Lewis, 2 Pick. 123; Cole V. Trull, 9 Pick. 325; Scott V. Ray, 18 Pick. 361.

7 Wh. on Ag. sec 231, 523.

merit on a distinctive consideration, extinguish the remainder of the debt.1 But if there be a distinctive consideration for the release of the residue, it operates as an extinguishment.2 This has been held to be the case where the fractional payment is made as part of a general composition by which there is to be a general release by creditors in consideration of an assignment of the debtor's entire property;3 where specific property is assigned which the creditor could not otherwise have reached;4 where a third party agrees to supply security for the fractional payment on condition of the release or make such payment in cash;5 where the payment is anticipated and a discount is taken oft' for this reason;6 where the payment is part of a compromise of litigation;7 where the payment is of a negotiable security which gives the creditor some special advantage;8 and where the payment is part of an arrangement with other joint debtors.9 Proof of payment of a part, also, may lead, with other circumstances, to the inference of the payment of the whole.10 - After suit is brought, payment of the debt with-

1 Supra, sec 504; infra, sec 996 et seq., Leake, 2d. ed. 888; Cumber V. Wane, 1 Strange, 426; 1 Smith, L. C. 7th Am. ed. 595; Fitch V. Sutton, 5 East, 230; Down V. Hatcher, 10 A. & E. 121; Mitchell V. Cragg, 10 M. & W. 367; Bailey V. Day, 26 Me. 88; Blan-chard V. Noyes, 3 N. H. 518; Wheeler V. Wheeler, 11 Vt. 60; Warren V. Skinner, 20 Conn. 559; Harriman V. Harriman, 12 Gray, 341; Seymour V. Minturn, 17 Johns. 169: Carraway V. Odeneal, 56 Miss. 223; Cavaness V. Ross, 33 Ark. 572. As to creating a new obligation, see supra, sec 852.

2 Infra, sec 996 et seq.; see Cooper V. Parker, 15 C. B. 822; Hinckley V. Arey, 27 Me. 362; Milliken V. Brown, 1 Rawle, 391; see for authorities and other distinctions, supra, sec 504. That this takes place in novation, see supra, sec 852 et seq.

3 Steinman V. Magnus, 11 East. 390; Evans V. Powis, 1 Ex. 601; and cases 3ited infra, sec 996 et seq.

4 Eaton V. Lincoln, 13 Mass. 424; infra, sec 1001.

5 Welby V. Drake, 1 C. & P. 557; Henderson V. Stobart, 5 Ex. 99; and cases cited supra, sec 504; and infra, sec 1001-3.

6 Supra, sec 504; Leake, 2d ed. 888; citing Pinnel's case, 5 Co. 117 a; and see Smith V. Brown, 3 Hawks, 580; and cases cited sec 504; and infra, sec 1000 et seq.

7 Supra, sec 504; Tayler V. Manners, L. R. 1 Ch. 48; Keen V. Vaughan, 48 Penn. St. 477; and see cases cited supra, sec 198, 533.

8 Supra, sec 504; Sibree V. Tripp, 15.

M. & W. 23; Lichfield V. Green, 1 H.

& N. 884: and cases cited infra, sec out the costs does not relieve the debtor from liability for the costs.1 It is otherwise when suit has not yet been brought.2

954, 1003; Goddard V. O'Brien, 46 L. T. N. S. 306.

9 Milliken V. Brown, 1 Rawle, 391; supra, sec 527.

10 Henderson V. Moore, 5 Cranch, 11.