In 1841, the supreme court of the State of New York held that where a debt has been discharged by accord and satisfaction for less than its amount, there remains no such moral obligation to pay the balance as will suj>port a subsequent promise to that effect;- although the. law was conceded to be otherwise of a discharge, which is not the mere act of the party, but by operation of law ;• as, for example, an- insolvent discharge. Stafford v. Bacon, 1 Hill, 532,
The propriety of this, distinction has been questioned. In 1850,-in a case before the supreme court of New Hampshire, the question was examined, and the decision in Stafford v. Bacon was shown to be in conflict with an earlier decision of the same court, and not very well sustained by the authorities cited in support of it. Trumbull v. Tilton, 21 N. H. 129.
But in this State, in a case decided in 184.5, the decision in Stafford v. Bacon, was cited with, approbation,, and the doctrine approved. That' doctrine is, that where a debt is. discharged by operation of law,,' a subsequent promise to pay it will be. binding-; but when it is discharged, by consent of the creditor, a subsequent promise to pay it will np,t be. binding. Warren v. Whitney, 24 Maine, 561. The debt was fifily- discharged, although less than the- whole sum was paid and accepted- R- S-, c. 82, § 44.
Whatever may bo our opinion, of tire.propriety of such a distinction, we think the question must be- regarded! as now- settled ift this. State, and no longer open for debate.
*493The promise relied upon in this suit falls within the latter class. It was a promise to pay the balance of a claim which had been discharged by consent of the creditor, and has no other consideration to support it than such previous indebtedness. Such a promise is not obligatory. Exceptions sustained.
New trial granted,.
Appleton, C. J.; Cutting, Kent, Barrows, and Daneorth, JJ., concurred.