debt is barred by reason of the accord and satisfaction, and that the judgment should be reversed, with costs. All concur. Judgment reversed.

(e) Composition with creditors.

WILLIAMS v. CARRINGTON.

1 HILTON (N. Y. C. P.), 515.-1857.

Action for debt. Defense, accord and satisfaction by composition. Appeal from judgment of Marine Court in favor of plaintiff. Defendant having made a composition with several of his creditors at forty cents on the dollar, made a similar agreement with plaintiffs by which he agreed to pay them forty cents on the dollar, and did pay them such amount, and received a receipt in full of their account. Defendant at the same time gave to plaintiffs a sealed instrument by which he bound himself to pay to them an additional forty per cent as soon as his compromise should be effected, on condition that plaintiffs sign a paper purporting to compromise his indebtedness to them for forty per cent. The composition was never completed, and plaintiffs bring this action. There was no evidence that plaintiffs ever executed a composition deed, or that other creditors were induced to enter into a compromise in consequence of the agreement with plaintiffs.

DALY, J. It was essential, in this case, to show that other creditors had consented to accept the forty per cent in discharge of their claims in consequence of the plaintiffs' consenting to do so. The consideration which supports such an agreement, when it is not under seal, is the mutual understanding, among all who become parties to it, that each is to take the composition agreed upon, and forbear further to press or insist upon their claims. It is said in Good v. Cheesman (2 Barn. & Adolph. 328), by Lord Tenterden, "that a creditor shall not bring an action where others have been induced to join him in a composition with the debtor; each party giving the rest reason to believe that, in consequence of such engagement, his demand will not be enforced. This is, in fact, a new agreement, substituted for the original contract

with the debtor; the consideration to each creditor being the engagement of the others not to press their individual claims." It must appear that the act of the plaintiff, in accepting the forty per cent, operated as an inducement to other creditors to do the same, otherwise it is but the acceptance of a lesser sum for a greater, which is no satisfaction. Thus in Lowe v. Equitar (7 Price, 604) the plaintiff agreed with the defendant to execute a deed of composition with the other creditors, and take the benefit of the composition with them, in consideration that the defendant would also deliver to him a picture of the value of £500. The picture was delivered and accepted by the plaintiff in full satisfaction of his claim, and the defendant and all the other creditors, except the plaintiff, signed the composition deed. The plaintiff sued for the original debt, and a plea setting up these facts was held to be no bar. I am inclined to think, from the report of this case, that the picture was accepted in lieu of, or as a payment of the composition, and if so, it was a case, in its essential features, like the present. Where creditors meet together, and the terms of the composition are arranged, as was the case in Cockshott v. Bennett (2 Term Rep. 763), or as in Good v. Cheesman, supra, put their names to an agreement or memorandum of the term, all the creditors present at such meeting, or all who sign the writing, enter into a mutual engagement, each with the other, to accept the amount proposed by way of compromise, and to forbear further to insist upon their claims. Where creditors thus mutually agree with each other, the beneficial consideration to each creditor is the engagement of the rest to forbear. fund is thereby secured for the general advantage of all; and if any one of the parties were allowed afterwards to enforce his whole claim, it would operate to the detriment of the other creditors who have relied upon his agreement to forbear, and might even deprive them of the sum it was mutually agreed they should receive, by putting it out of the power of the debtor to carry out the composition. I know of no case, however, in which an acceptance, by a creditor from his debtor, of a certain sum in discharge of his debt, where other creditors have done the same, has been held to be a satisfaction, unless there was something in the case to show that the other creditors acted with the knowl

A

edge of his concurrence, and it could be assumed that their agreement necessarily contemplated and was founded in the benefit and advantage to be derived from his agreement also to forbear - in the language of Lord Tenterden, that they "were induced to join him in the composition." It is very probable, in this case, that such was the fact very probable that the plaintiffs signed the composition, but nothing of the kind appears in the evidence. For all that appears in the testimony, the other creditors may have accepted the forty per cent without knowing that the plaintiffs had received that sum, or had agreed to accept it. We would not be justified in presuming, upon this evidence, that they did, against what must be regarded as a direct finding by the judge below, that they did not. We would have to hold that the judgment he gave was against evidence, and we could not, I think, go that length.

The judgment must be affirmed; but as the question is not very fully discussed by either party upon the written argument submitted, and as it is of a good deal of practical importance, I think the defendant should be allowed, if he wishes it, to carry the case to the Court of Appeals.

[INGRAHAM, F. J., also read for affirmance.] BRADY, J., dissented.

Judgment affirmed.

PERKINS v. LOCKWOOD.

100 MASSACHUSETTS, 249.-1868.

Action on a promissory note upon which was the following indorsement:

"December 14, 1864. Received on the within note $10.38, being the first instalment towards $15.94, being ten per cent of said note, which when paid is to be in full satisfaction and settlement of the within note, provided that no other creditor shall receive more than ten per cent on his claim against Lockwood & Connell, and provided also that if any creditor shall receive more than ten per cent, an amount equal to such percentage shall be paid on the within note."

WELLS, J. An agreement to accept, in satisfaction and discharge of a liquidated debt, a sum less than the full amount due,

is not valid, unless there exist some consideration to support it other than the payment or promise of the debtor to pay such less sum. Harriman v. Harriman, 12 Gray, 341. The note or collateral promise of another person will support the agreement. Brooks v. White, 2 Met. 283. For a like reason, when such an agreement forms part of a composition in which several creditors join, mutually stipulating to withdraw or withhold suits and that they will release to their common debtor a part of their claims upon payment of a certain other part, the agreement becomes binding between each creditor and the debtor. Eaton v. Lincoln, 13 Mass. 424; Steinman v. Magnus, 11 East, 390. The reason is, that the rights and interests of other parties become involved in the arrangement, and this affords a new and legal consideration for the promise. It would be contrary to good faith for a creditor who has secured the advantage of such an arrangement to disregard its obligations by proceeding to enforce the balance of his demand; and the debtor is entitled to avail himself of this consideration in defense. Good v. Cheesman, 2 B. & Ad. 328; Boyd v. Hind, 1 H. & N. 938.

In this case, the exceptions do not show that there was any such mutual agreement between the creditors. The defense indicated by the most important ruling of the court appears to be based entirely upon the legal effect of the agreement between the plaintiff and defendant as indorsed upon the notes in suit. That agreement affects no other party. Its reference to the like settlement of other debts is merely in the nature of a condition attached to the plaintiff's promise to discharge the notes. It does not make it any the more binding. The defendant's undertaking, that he would not pay others more than the plaintiff, would not prevent others from enforcing their claims in full, and is not such a promise as would afford any consideration for the agreement of the plaintiff. It is neither a benefit to the plaintiff nor disadvantage to the defendant. So far as the exceptions show, the release of their claims by the other creditors had no connection with this agreement. The agreement itself shows no legal consideration to give it effect as a contract.

As we understand the exceptions, the court below ruled that the agreement indorsed upon the notes constituted of itself “a legal

and valid contract, binding on the plaintiff." This we think was clearly wrong; and for this cause the

Exceptions are sustained.

NOTE. For cases holding mutual subscriptions a sufficient consideration for each other, see Lathrop v. Knapp, 27 Wis. 214; Higert v. Indiana Asbury University, 53 Ind. 326; Christian College v. Hendley, 49 Cal. 347. Contra: Trustees v. Stewart, 1 N. Y. 581; First Pres. Ch. v. Cooper, 112 N. Y. 517; Cottage Street M. E. Ch. v. Kendall, 121 Mass. 528; University of Des Moines v. Livingstone, 57 Ia. 307.

(iii.) Consideration must be legal.

NOTE. For cases on legality of consideration, see cases on "Legality of Object," post, Part II. Ch. V.

(iv.) Consideration may be executory or executed, it must not be past.

DEARBORN v. BOWMAN.

3 METCALF (Mass.), 155. — 1841.

Assumpsit on a note in these terms: "June 17, 1839. I promise to pay Dearborn & Bellows sixty dollars in ninety days, value received. Bowman.” Defense, want of consideration.

SHAW, C. J. The defense to the action to recover the amount of this note is want of consideration. It is manifest from the note itself, that it is not a negotiable instrument, being payable neither to order nor to bearer; indeed, it appears by the case, that the defendant declined making it negotiable. But total want of consideration is a good defense even to an action on a negotiable note, when brought by the promisee against the maker. Then the question is, whether upon the facts shown, any consideration appears for this promise. The note was given in consequence of services before that time performed by the plaintiffs, in printing and circulating extra papers and documents, previously to an election of state senators, at which the defendant was a candidate. Such services imposed no obligation, legal or moral, on the defendant; and it would be somewhat dangerous to