1 If a creditor, upon payment of part of an undisputed account, gives a receipt in full, he can recover the balance, although the receipt was given knowingly and there was no error or fraud. Ryan v. Ward, 48 N. Y. 204. But the acceptance of part of an unliquidated claim in discharge of the whole is a payment of the whole. Hilliard v. Noyes, 68 N. H. 812.

there were no release under seal. (x) l Some exceptions *to

Exch. 607, 28 Eng. L. & Eq. 496. So if two actions be commenced on a bill or note against separate parties, and the debt and costs in one suit be paid, this is not such a payment as will defeat the other action; but the plaintiff is entitled to nominal damages and costs. Randall v. Moon, 12 C. B. 261,14 Eng. L. & Eq. 243; Goodwin v. Cremer, supra, and editor's note. But in Beaumont v. Greathead, 8 Dowl. & L. P. C. 681, it was held, that payment and acceptance of the amount of a promissory note after it becomes due, and when the holder is entitled to nominal damages, will support a plea of payment and acceptance in discharge of the debt and damages; and that consequently the holder, after such payment and acceptance, cannot maintain an action for such nominal damages. And per Maule, J.: "The point is, whether, after default on a simple contract for .£60, in respect of which the defendant is liable to nominal damages, if the party accept that sum, he can afterwards sue for those nominal damages. I think he cannot. Those nominal damages, in fact, are introduced solely for a technical purpose, because the statute of Gloucester (6 Ed. I. c. 1, § 2) says 'damages;' and are, in effect, only a peg to hang costs on. The creditor, for example, says, You owe me a debt of £50, and a nominal sum; the debtor thereupon takes out £60 and pays it to him, saying, Here is the £60 debt, and the nominal sum. That nominal sum means in fact no sum at all; it is not merely an insignificant sum, but a sum which does not exist, in point of quantity, at all. It has a mere fictitious existence; and therefore, I say, a man may well receive £60 in satisfaction and discharge of a debt of £60, and nominal damages." And see Cooper v. Parker, 15 C. B. 828, 29 Eng. L. & Eq 241.

(x) Milliken v. Brown, 1 Rawle, 301. There a creditor of three joint debtors, accepted from one of them one-third of the debt, with intent to exonerate him. This was held to operate as a release as to him, and therefore as to the other two also. Huston, J., said: "There was a time in the history of the law, when, like everything else of that day, it was a system of metaphysics and logic; and when the cause was decided without the slightest regard to its justice, solely on the technical accuracy of the pleaders on the several sides; defect of form in the plea was defect of right in him who used it. This period of juridical history, however, was in some respects distinguished by great men, of great learning, and abounds with information to the student. At the time 1 speak of, payment of debt and interest on a bond, the next day after it fell due, was no defence in a court of law; nay, it was no defence to prove payment without an acquittance before the day; nay, if you pleaded and proved a payment, which was accepted in full of the debt, yet you failed unless your plea stated that you paid it in full, as well as that it was accepted in full; or perhaps because you pleaded it as a payment, when you ought to have pleaded it as an accord and satisfaction. An act of parliament or two, and the constant interference of the Court of Chancery, granting relief, have changed this in a great measure; but it is not a century since it was solemnly decided, that if a creditor, finding his debtor in failing circumstances, and being afraid of losing his debt, proposed to give him a discharge in full if he paid half the money, and the debtor borrowed the money, and paid the one-half on the day the bond fell due, and got an acquittance in terms as explicit as the English language could afford, yet, if sued, he must pay the rest of the debt; for it was impossible, say the court, payment of part could be a satisfaction of the whole; but, if part was paid before the day, it was a good satisfaction of the whole. I mention this not from a general disrespect to the law or lawyers of the days I speak of, but for another purpose. It has, alas! become too common for men of good character and principles, but who trade on borrowed capital, to fail, and their creditors are glad to receive fifty cents in the dollar, and give a discharge in full; and I do not know the lawyer who would be hardy enough to deny the validity of such discharge, although given after the money was due, and although the discharge was not under seal, or although it might be doubtful whether it could more properly be called a receipt or a release, or a covenant never to sue, if the meaning can be certainly ascertained, and no the role have always been acknowledged; as if a part be paid before all is due, (y) or in a way more beneficial to the creditor than that prescribed by the contract; (z)1 here it is said there is a new consideration for the release of the whole debt. And if a stranger pay from his own money, or give his own note, for a part of a debt due from another, in consideration of a discharge of the whole, such discharge is good. (a) * If a creditor by his own act and choice compel a payment of a part of his claim by process of law, this will generally operate as an extinguishment of his whole claim, under the rule that he shall not so divide an entire cause of action as to give himself two suits upon it. (b) He may often bring his action for a part; but a recovery in that action bars a suit for the remainder. As if one has fraud, concealment, or mistake at the giving it, it is effectual. It avails little, then, to go back to the last century, or further, to cite cases in which a matter was of validity or effect, according as it was couched in this or that form. Universally the law is, or ought to be, that the meaning or intention of the parties is, if it can be distinctly known, to have effect, unless the intention contravenes some well-established principle of law." See Keen v. Vaughan, 48 Penn. St. 477.