TIVO THEORIES OF CONSIDERATION. 527 the debtor could make use of such a promise was by a cross action. But in recent times such a promise would serve as a bar to an action upon the partially paid debt, on the ground of avoiding circuity of action, since what the creditor recovered in his action against the debtor, he would have to repay as damages in the cross action. By this simple process, without any impeachment of the logic of Brian, or of the resolution in Pinnel's case, the mediaeval rule that there cannot be an accord and satisfaction of a debt by a pay- ment of part of it, would have ceased to have any practical opera- tion ; full effect would have been given to reasonable bargains of 'business men ; and the law of consideration would have gained greatly in simplicity and freedom from annoying technicalities. In 1882 the House of Lords were in a position to bring about this greatly to be desired result. In Foakes v, Beer,^ a creditor, in consideration of the payment of the principal of the debt un- dertook to relinquish all claim to interest. The Lords with great reluctance, Lord Blackburn all but dissenting, gave judgment for the plaintiff, and chiefly for the reason that they were not prepared to overrule, as contrary to law, the doctrine stated by Coke in Pinnel's case. It is greatly to be deplored that the case of Bagge V. Slade, and the other similar cases, were not brought to the at- tention of the court. Had Coke's real opinion, as expressed in that case, been made known to the Lords, it is not improbable that they would have followed it, instead of making him stand sponsor for a doctrine contrary to his declared convictions. Wherever a promise to relinquish a debt given in considera- tion of its partial payment is inoperative, a promise of temporary forbearance for the same consideration must be invalid. But no English case to this effect has been found. There are, however, numerous American decisions on the point.^ If a promise by a creditor in consideration of the payment of a part or the whole of a debt is not enforceable, it follows that a promise in consideration of the performance of any other act due 1 9 App. Cas. 605. 2 Liening v. Gould, 13 Cal. 598 ; Solary v. Stultz, 22 Fla. 263 ; Holliday v. Poole, 77 Ga. 159; Bush V. Rawlins, 89 Ga. 117 ; Phoenix Co. v. Rink, no 111. 538; Shook?/. State, 6 Ind. 461 ; Dare v. Hall, 70 Ind. 545; Davis v. Stout, 84 Ind. 12; Potter v. Green, 6 All. 442; Warren v. Hodge, 121 Mass. 106; Kern v. Andrews, 59 Miss. 39, Price V. Cannon, 3 Mo. 453; Tucker v. Bartle, 85 Mo. 114; Russ v. Hobbs, 61 N. H. 93; Parmalee v. Thompson, 45 N. Y. 58; Turnbull v. Brock, 31 Oh. St. 649; Yeary V. Smith, 45 Tex. 56, 72.
