Page:Harvard Law Review Volume 12.djvu/542

522 S^i HARVARD LAW REVIEW. Fineux: "If a man be bounden in lOO pounds to pay lOO marks unto the obligee, and the obligee accept of lo pounds of the obligor in satisfaction of lOO marks, it is a good performance of the condi- tion ; and yet some have said the contrary, because lo pounds cannot be satisfaction of lOO marks. But that is not material in his case because the obligee is content therewith." But this pro- test was powerless against the logic of Brian. In 1561 all the judges agreed that " the payment of 20 pounds cannot be a satis- faction for 100 pounds." ^ In 1602 came Coke's celebrated dictum in Pinnel's case:^ " Resolved by the whole Court that payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum ; but the gift of a horse, hawk, or robe, etc., in sat- isfaction is good. For it shall be intended that ahorse, hawk,. or robe might be more beneficial to the plaintiff than the money, in respect of some circumstance, or otherwise the plaintiff would not have accepted of it in satisfaction. But when the whole sum is due, by no intendment the acceptance of a parcel can be a satis- faction to the plaintiff."^ The same reasoning occurs in the Com- mentary on Littleton : * " because it is apparent that a lesser sum of money cannot be a satisfaction of a greater." As the learned reader will have observed, there is no allusion in any of these remarks of the judges to the consideration for an assumpsit. The word consideration, in its modern sense, was unknown to Brian, and the action of assumpsit itself was, in his day, in the embryonic stage. To his mind, whether 10 pounds could be a satisfaction of 20 pounds was a question of simple arith- metic which admitted of only one answer. Ten cannot be twenty, the part cannot be the whole. Coke was presumably familiar with Brian's statement. At all events he reasoned in precisely the same axiomatic way : *' It appears to the judges that by no possibility a lesser sum can be a satisfaction for a greater." It is sufficiently obvious from the similarity of the language of Coke and Brian that it never occurred to the former that the resolution in Pinnel's 1 Note, Dal. 49, pi. 13. To the same effect Anon. (1588) 4 Leon. 81, pi. 172, " Per curiam, 5 pounds cannot be a satisfaction for 10 pounds." 2 5 Rep. 1 17, a ; Moo. 677, pi. 923, s. c. ' In the report of the same case in Moore it is said : " But payment of part at the day and place cannot be, though accepted, satisfaction of the whole of the same kind." See also Goring z/. Goring, (1602) Yelv. 11.
 * 212, b.