The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-11-19

The Supreme Court OF Appeals was
crowded yesterday, oDinion.day, as decis.
ion, REGARDED as important, was expected t0
be delivered in the case OF Mr.. Cassius +.
Lee, Jr., OF Alexandria, rs. VI. B. Harlow,
treasurer Of that city. Many OF the promi-
nent lawyers from other parts Of the State
were present.
Mr.. Lee presented coupons Zone third OF
which were duel TO The Treasurer In pay.
ment OF bis taxes, but the Treasurer re-
fused TO receive The coupons, and Mr.. Lee
then peiitioned the Supreme Court for
a D,qnddmUS to compel the Treasurer TO re-
ceiye them in payment OF his taxes, and the
case therefore came no upon a rule ptSi for
monddmuS, which was awarded by the
court. Mr. Harlow, the treasurer, demur-
red 10 the petition on the ground that it
was not sufficient TO entillc Mr.. Lee 10 a
writ OF mdndamuS.
Judge Anderson delivered the opinion OF
the court awarding the mdnddmuS, and
Judges MOncure and Christian coBcurred.
Judge Staples delivered a dissenting opin-
ion, in which Judge Burks concurrcd.
The following is Judge Anderson's opiE-
ion:
OPINION OF JUDGE ANDERSON.
The petitioner held coupons Of the Com.
monwealth which upon their face bound
the Commonwealth to receive them at and
after their maturity IN payment Of all taXes,
dues, demands, dc due The State. They
were presented to the Auditor for pay ment,
who paid two thirds of the amount. and
stamped upon the COUPONS two thirds paid,
and then returned them 10 the owner.
Those coupons. for the balance due on
4 nap hqqn 20
ed TO the Treasurer OF Alexandria by the
holder in pay mt of taxes of the Common
wealth which he bad for collection against
bin, but the said Treasurer refused 10 re-
ceive them in payment thereof, and the
holder OF said coupons petitiontd this
court for a mdnddmuS 10 compel The said
Treasurer TO receive them in payment Of
his said taxes TO the Commonwealth, and
The case comes up upon rule ntSi for a
mdnddmuS, which was awarded by this
court.
The Treasurer demurred TO the petition
upon the ground that it ls not sufficient in
law TO entitle the petitioner TO the writ Of
mdnddmuS.
He al>o, without waiviuc his demurrer,
but insisting on the same, answers, aud re-
sists the awarding OF the writ upon the
ground that under the act of 19th of March,
1872, he received two thirds Of his said cOu-
pons, ard by reason thereof is not entitled
to receive the'residue in payment OF taxes.
No grounds are set out IN support OF the
demurrer, and | am at a less to apprehend
what grounds it can rest on. 1t was not
insisted on by the learned counsel for the
State in argument, and | deem it unneces-
sarv to notice it further than TO say il must
be overIuled.
UpOn the answer the question is raised,
Was it competent for the Legislature, III ap.
prOpriating money to pay two thirds OF an
acknowledged debt Of the State, to couple
it with a condition that if the creditor re-
ceiyes it he shall be deemed 10 have acqul-
esced, without consideration, in previous
act OF the Legislature, otherwise not binding
on him. which denies TO him the benefit Of
his contract as to the remaining third OF his
debt or his security for it!
The obligation OF the State was for the
whole debt, evidenced by the coupons. Ii
is not true that there was not an obligation
on the Legislature 10 provide for the pay
ment OF the whole, and 10 make an appr0-
priation therefor. The Constitution, which
gave them all the authority they had to
| legi>late at all, laid upon them the obiga-
ton 10 provide the means for the payment,
nose. Ard the appropriation for the pay.
ment OF two thirds was doing only in part
what the Legislature was morally and con-
stifutionalIy bound TO do; and the doing OF
| that could constitute no consideration for
surrender by the creditor Of the balance
Of his debt, or the securities TO which he
was entitled by contract for its payment.
The creditor got no benefit. He cot only a
palt, when be was entitled to the whole ;
and the State lost nothing by the payment
OF a part Of what she honestly owed. Con-
! seqneDtly, II such a contract had been made,
If was without consideration. 1t was M.
dun paCtum, and could not be enforced.
In Warren Us. skinner, 20 Conn. r., Sol,
| Ellsworth. j., said: Ii is no Longer ques-
tion whether payment of part OF debt is
a satisfaction OF the whole, either consider
ed as payment, or accord and satisfaction.
An accord (he said) is an agree
ment. But there is no agreement without
consideration, and receiving part Is no
consideration for an agreement not to col
| lect the rest. 1t is n "nude pact"
| In Fitch Us. Sutton, East, X. 23l, Lord
| EllensbOrough, c. j., said at is inpOssi-
ble TO contend that acceptance OF IL !. 10 5.
is an eXtinguishment OF a debt OF 90 J..
There must be some consideration for the
REIMBURSEMENT Of the residue-somethiDg
| collateral TO show possibility OF benefit TO
the party relinquisbing his further claim,
otherwise the agreement Is nudum pdctun.
But the mere promise 10 pay the rest when
OF ability put the plaintiff in no better con-
dition than he was before. II the obligee
receiyeth part, and maketh acquittance un.
der his seal in full satisfaction OF the whole,
il is sufficient by reason that the deed (Which
imports consideration amounteth to ac-
quittance Of the whole"
In Archer as. Pherenise. Paige, r.. 3OS,
the Court said: " 1t Is well settled that the
payment by the debtor OF q less sum OF mo-
ney than the real debt forms no valid con-
sideration for an agreement to discharge the
residue. Such an agreement Will be no salts
faction OF the larger sum unless II is under
seal, which imports consideration" This
doctrine prevails in courts OF equity as well
as i'm courts of law, as was held IN that case.
Equity will not aid party to enforce vol
untary agreement, which IS neither founded
on q valuable or good consideration.
But the act OF Assembly in question pro-
noses 10 take from the creditorthe residue
OF his debt, or his security for 1t, which he
is entitled TO by the contract OF the State,
which is the same thing, by implying con-
tract on part Of the creditor 10 surrender
the residue OF his debt, from the TACT tnat
be received a part OF 1t, which we have
seen would not be valid contract II IL
were expressed, because 1t would be with
out consideration. We have also seen that
il is the established doctrine OF courts OF
equity as well as law that the payment OF
part OF a debt is not an acqultaDce OF the
q hole unless the residue is released under