¶1In this case the defendant was liable to the plaintiff upon the order in his favor drawn upon Met-calf, he having refused to pay the balance appearing upon the paper itself to be due, upon the ground that the plaintiff had received that balance, amounting to about nine dollars, from a source and under circumstances that rendered right that it should be accounted for by him, as payment to that extent.
¶2This small sum in controversy was the fruit of collections made by the plaintiff of small accounts which Bossiter had placed in his hands for collection, and for which he had given his promise to account to Bossiter. We are left to infer, and, as the inference is favorable to the defendant, shall do so, that these demands were, like the property which the plaintiff had been employed to collect, parcel of the effects covered by the assignment made by Haywood to Bossiter, and which it became the duty of the latter, by virtue of the trust reposed by that transaction, to collect and make available for the proper objects. To pay the necessary charges for the services performed by Fisher, Bossiter was primarily holden to him; but he might, without question, have retained the fund for the purpose of indemnity, or have used such parts as he found available, to pay the servant whom he had so employed. If he had actually made such an appropriation in this case, *424then the money collected by Fisher became his own. If not, then it was, as between himself and Eossiter, unquestionably the money of the latter, to whom he had promised to account for it, whatever trusts in regard to it may have been chargeable upon him.
¶3Now, upon the state of the evidence, there is plainly no pretence for charging the plaintiff with that sum of money as having been assigned by him as the property of Haywood in his hands, forming part of the consideration for which the order was given, nor for charging him with it as having been derived from the fund from which the drawee of the order was to have paid it; for it was in no practical sense the money of Haywood, but it was the money of Eossiter or of the plaintiff himself.
¶4But it is said that the plaintiff, by his own promise, has charged himself with the sum in dispute. It is impossible to state the terms of this promise without exposing its absolute nudity. It was to appropriate the money of Eossiter to pay the debt of Willard, or else it was to forgive, without consideration or equivalent, so much of his own just claim against Willard. Nothing is better settled than that a promise, without some kind of consideration, to receive a less sum in payment of a greater, is of no effect. Clark v. Dinsmore, 5 N. H. 139, and authorities there cited.
¶5The instructions to which the exception was taken were therefore correct, and there must be
¶6Judgment on the verdict.