#### *Kinsler & M'Gregor, for their assignee,*v. *N. Pope.*

Plaintiffs copartners, failed, and made an assignment. Defendant had separate accounts against the plaintiffs individually, which they had severally agreedi * previous to the assignment, to set off against their partnership demand against him. The jury, under their instructions, refused to allow the discount against plaintiffs’ assignee. On appeal, the Court granted a new trial, because the evidence might have supported a verdict, finding mutual promises by the parties, to accept payment of their respective demands by set off; and that issue had not been submitted to the jury. *Holding*that the discount, if good against the plaintiffs, was good against their assignee.

When mutual promises are simultaneously made, the promise of each is a good consideration for the promise of the other.

*Before*Frost, J., *at Columbia, June,*1849.

Kinsler and McGregor failed in July 1848, and made an assignment to John Kinsler, by whom this action was brought in their names.

Pope had an account against Kinsler for $65,20, and one against McGregor for $9;05. He claimed to set these off against the plaintiffs’ demand.

Byars, for the defendant, testified that he called on Kinsler with'his account, and Kinsler told him to carry it to the store and leave it there ; at the same time Kinsler said, that Pope owed K. & McG. money ; and he wished the account settled that way ; that he did not wish to pay money when it was *127owing to him. At the store, the witness saw McGregor, and presented to him his account. McG. said he could not pay, Pope, when Pope owed him. Kinsler’s account was left at the store with McG. After leaving the accounts at the store, the witness called for a-settlement, and saw McG., who.said he would settle whenever K. was there. The witness after-wards saw K. near the post office, and asked for a settlement of his account. Kinsler said he had not then, time, but he would discount his account against Pope’s. McG. told the witness, if he would call at any time when Kinsler, was there, they would settle the accounts. He never saw K. & McG. together, arid does not know that Kinsler had any knowledge of Pope’s account against McGregor.

The jury were instructed, that if either Kinsler or McGre-gor, or if each, of them, separately and individually, promised to settle Pope’s account against them, respectively, by discounting it against ;the copartnership demand against Pope, such promise by one, would not bind the other. This was admitted by the defendant’s attorney in his argument.' The jury were advised, that there was no evidence of a joint promise, by Kinsler & McGregor, to pay Pope’s account against either, by discounting it from the partnership demand. If the jury took a different view of the evidence, and should conclude there was sufficient evidence of a joint promise, they were instructed respecting the law, in that case, that a mutual promise to Pope to set off his account- against each of them, against the copartnership debt, which Pope owed, would not be binding on Kinsler & McGregor, for want of any consideration to support it. As to Pope, it was a mere voluntary undertaking. . ■

The jury did not allow the discounts, and the defendant appealed, on the grounds :

1st.-Because his Honor erred in charging the jury, that if they found that Kinsler &■ McGregor aid, separately and severally, promise and agree with the defendant, to allow him a credit on the debt due by defendant, to Kinsler & Mc-Gregor ; still, if said Kinsler & McGregor were not together, and in each other’s presence, when they made this promise, the Jury could not-allow the discount in their verdict.

2d. Because^ his Honor charged the jury, that they could not allow the set off, and that if they did, their verdict could not be sustained, as it would be contrary to law. That Kinsler’s promise and McGregor’s promise, to give Pope credit for the debt he owed the firm, would not bind the firm — that, if any such promise was made, it was without any legal consideration — a mere *nudum pactum,*and void, and could not be enforced in law. This charge, defendant respectfully submitted, was erroneous.

*1283d. Because his Honor erred in charging the jury, That the promise and agreement of McGregor, one of the firm of Kinsler & McGregor, did not and could not bind the firm of Kinsler & McGregor; in other words, that McGregor’s promise to credit Pope’s note, with the amount of Pope’s account against Kinsler, did not bind the firm, and that Kinsler’s promise to the same effect, at a different time, did not help the matter in the slightest degree.

Black, for the motion.

*Goodwyn,*contra.

*Curia, per*Frost, J.

As a general rule, a debt, can be discharged only by payment, in money. But, if the creditor consents to accept from the debtor any collateral act, or thing, and does actually accept the same, in discharge of the debt- or’s liability, that will be a good defence, as accord and satisfaction. The plea of accord, merely, without satisfaction, is bad. The accord or agreement imposes no obligation on the creditor, unless it be supported by a good consideration. It then forms a new contract, which, by substitution, may cancel the original liability. If the plaintiffs and defendant had passed mutual receipts, that would have been a satisfaction, by accord, of their respective demands. The individual contracts and effects of the several partners, and the firm, are completely separate and distinct. - An agreement by the partners to accept, from a debtor of the firm, the note or account of one of the partners, in payment of a co-partnership account against the debtor, does not differ from a like agreement to accept the note or account of a stranger, in payment. On the trial, I thought that the defendant’s case showed only an accord, unexecuted, which was no satisfaction ; and that the mere accord Or agreement of the plaintiffs, that they would accept in payment of the partnership account, against the defendant, the accounts which the defendant had against them, individually, was not sufficient to support the defendant’s discount, because the agreement was unsupported by any sufficient consideration. But the evidence might have supported a verdict, finding mutual promises by the parties to accept payment of their respective demands by set off; and that issue should have been submitted to the jury. When mutual promises are simultaneously made, the promise of each is a good consideration for the promise of the other. Promise for promise is a good consideration in an action for a breach of a promise of marriage; so also, for a wager. And an accord, with mutual promises to perform, is good, though they be not performed at the time of action ; for the party has a remedy to compel the performance. If the defendant, confiding in the promise of the plaintiffs, forebore to enforce, promptly, the payment of his accounts against them, *129individually, and the defendant were, by the subsequent assignment of the co-partnership account against him, prived of his defence and compelled to pay to the plaintiffs’ assignee the account which he owed to the co-partnership, he might maintain an action against the plaintiffs. The discount is in the nature of a cross action. In this form, which can alone be effectual, on account of the insolvency of the plaintiffs, the defendant seeks to enforce the performance, by the plaintiffs, of their agreement. The discount, if good against the plaintiffs, is good against their assignee.

The motion is granted.

Evans, Wardlaw & Withers, JJ., concurred.

*Motion granted.*