524 HARVARD LAW REVIEW. obligee, in consideration of payment of less than the amount due by the principal obligor, not to sue the surety, was held to be a valid contract, " for it is a good consideration for the obligee to have money in his purse, it being before only a chose in action." The subsequent history of the mediaeval doctrine, that a partial payment of a debt cannot be a satisfaction of the whole amount due, although so intended by the parties, is soon told. In Cumber V. Wane,^ in 1721, the defendant pleaded to an action of indebitatus assumpsit that his own negotiable note for five pounds had been given and received in satisfaction of the debt. The plaintiff ob- jected that the plea was ill, '* it appearing that the note for 5 pounds could not be a satisfaction for 15 pounds. . . . Even the actual payment of 5 pounds would not do, because it is a less sum. Much less shall a note payable at a future day;" This argument prevailed. Pratt, C. J., said : " We are all of opinion that the plea is not good. ... If 5 pounds be (as is admitted) no satisfac- tion for 15 pounds, why is a simple contract to pay 5 pounds a satisfaction for another simple contract for three times the value." The next judicial allusion to the doctrine appears to be a dictum of Buller, J., in 1798: " Whether an agreement by parol to accept a smaller sum in satisfaction of a larger can be pleaded or not I do not know. It was formerly considered that it could not, and was so decided in Coke. I think, however, there are some late cases to the contrary, and one in particular in Lord Mans- field's time, who said that, if a party chose to take a smaller sum, why should he not do it? There may be circumstances under which such an agreement might not only be fair, but advantage- ous." ^ But this dictum has had no effect. Six years later the old rule was reasserted in Fitch v. Sutton.^ Lord Ellenborough, una- ware of the true origin of the rule and unacquainted with Bagge V. Slade and the kindred cases of the seventeenth century, put for- ward the novel view that the rule was based upon the doctrine of consideration. "There must be some consideration for the relinquishment of the residue; something collateral, to shew a possibility of benefit to the party relinquishing his further claim, otherwise the agreement is nudum pactum." This statement by I Stra. 426. Cumber v. Wane, though clearly coming within the reasoning of Brian and Coke (see also Geang v. Swaine, i Lutw. 464, 466), and approved in Fitch v. Sutton, 5 East, 230, 232, and Thomas v. Heathorn, 2 B. & C. 477, 481, was overruled in Sibree v. Tripp, 15 M. & W. 22. a Stock V. Mawson, i B. & P. 286, 290. « 5 East, 230.
