person, unless it be made in writing, and signed by the party to be charged. And there are provisions substantially similar to this in the statutes of Maine and Vermont.

Instead of the "£10" in the seventeenth section of the English statute, the sum mentioned in the statutes of frauds of the different States is generally from thirty to fifty dollars.

CHAPTER XVI.

PAYMENT AND TENDER.

SECTION I.

HOW PAYMENT MAY BE MADE.

The obligations which arise out of most mercantile contracts are to be satisfied by payment of money. The parties may always agree to any specific manner of payment, and then that becomes obligatory on the creditor as well as the debtor. As, by deducting the amount to be paid from a debt due to the debtor, either from the creditor or from any one else. Or the amount may be made, by agreement, payable by a bill or note. If the debt is to be paid by a bill or note, it must be such a one as is agreed upon, and this must be tendered by the debtor. But the word "note" or "bill ” does not necessarily mean an "approved note" or "bill;" and if this phrase be itself used, it means only a note or bill to which there is no reasonable objection; that is, one which ought to be approved.

In the absence of any especial agreement, the only payment known to the law is by cash, which the debtor must pay when it is due, or tender to the creditor.

The tender should, properly, be in cash, or in bills made a legal tender by law, and must be so if that is required; but a tender in good and current bank-bills is sufficient, unless it be objected to because they are not money.

Generally, if the tender be refused for any express and specific reason, the creditor cannot afterwards take advantage of any informality to which he did not object at the time of the tender.

The tender may be of a larger sum than is due. But a tender of a larger sum, if made with a requirement of change or of the balance, is not good. Nor must it be accompanied with a demand or condition that any instrument or document shall be delivered;

nor that the sum tendered shall be received as all that is due; nor that a receipt in full shall be given. But a simple receipt for so much money paid may be demanded. We have already seen that, if a receipt be given, it is only strong evidence of payment, but not conclusive. And even if it be "in full of all demands," it is still open to explanation or denial by evidence.

A lawful tender, and payment of the money into court, is a good defence to an action for the debt. But the creditor may break down this defence by proving that, subsequently to the tender, he demanded the money of the debtor, and the debtor refused to give it. If a debtor tenders money to pay his debt, he must be always ready to pay that money if it be asked from him.

If the buyer or debtor give, and the seller or creditor receive, a negotiable note or bill for the sum due, this is not anywhere absolute and conclusive payment. In Maine and in Massachusetts the law presumes that such note or bill is payment of the debt unless a contrary intention is shown. In nearly all the States of this Union but those two, and in the Supreme Court of the United States, it is not payment, unless the intention of the parties that it should be so is shown. In New York, it has been held that the debtor's own promissory note is not payment, even if it be intended or expressly agreed that it should be.

If a creditor, who receives from his debtor any bill or note, negotiates or sells it for value to a third party, without making himself liable, the bill or note was payment, although it be dishonored, because it has been good to the debtor, and he has received the avails of it; and if the law did not hold that the bill had paid the debt, he could sue the original debt, and then he would have the value of the bill or payment twice. Not so, however, if he negotiates it in such a way that he is himself liable upon it; for if he pays it, he loses what he sold it for, unless he can recover his debt from his debtor.

SECTION II.

APPROPRIATION OF PAYMENT.

If one who owes several debts to his creditor makes to him a general payment, it may be an important question to which of those debts this payment shall be appropriated: for some of them may be secured, and others not; or some of them may carry interest, and others not; or some of them be barred by the statute of limitations, and others not.

There is no doubt that the payor may appropriate his payment, at the time of the payment, at his own pleasure. And if he does

not exercise this right, the receiver may, at the time of payment, make the appropriation. But if neither party does this at that time, and at a future period the question comes up as to which party may then make the appropriation, or, rather, how the law will then appropriate the payment, it is then the better and prevailing rule that, if the court can ascertain, either from the words used, or from the circumstances of the case, or from any usage, what was the intention and understanding of the parties at the time of the payment, that intention will be carried into effect. And if this cannot be ascertained, then the court will direct such appropriation of the payment as will best protect the rights and interests of both parties, and do justice between them. And one reason for this conclusion would be, that the law would presume that this was the original intention of the parties. A very general rule, which would indeed be always adopted in the absence of especial reason to the contrary, is, to apply the payment first to the oldest debt, until that is satisfied, and then go on applying the payment to the other debts in the order of their age.

If A owes a debt to B, on B's own account, and another debt to B as trustee for somebody, and A pays B a sum of money without appropriating it, B cannot apply it all to the debt due him on his own account, but must divide it between that debt and the debt due to him as trustee, in proportion to their respective amounts. Because it is his duty as trustee to take as good care of the debts due to him for another, as of those due to him on his own account.

We have spoken of a "bill or note;" and notes are sometimes called bills; so bank-notes are often called bank-bills. But the legal meaning of "bill" is always a draft or order on somebody to pay money. A note is a promise to pay. See chapter on Notes and Bills.

CHAPTER XVII.

RECEIPTS AND RELEASES.

A receipt is only an acknowledgment that a sum of money has been paid. It may be in one word, as when, under a bill of parcels, the seller writes the word "paid," and signs it. More commonly the words are "received payment." Formerly it was usual to

add the words "errors excepted."

Then it grew customary to write the initial letters "E. E." instead of the words; but all this is unnecessary. If there be an error in the receipt, or in the paper receipted, the law permits the party injured by it to explain and correct the error, although there be no express reservation or exception of errors.

Receipts are of all degrees of fulness, from the single word "paid," to those which relate the particulars for which the receipt is given, and the manner in which the money was paid or the thing delivered. I give the following forms of receipts and

releases:

FORMS ANNEXED TO THIS CHAPTER.

(133.) A receipt in simplest form.

(134.) A receipt, stating on what account the money is received.

(135.) A receipt, stating the purpose for which the money or articles

are received.

(136.) A general release.

(137.) A mutual general release by indenture.

(138.) A release from creditors to a debtor, under a composition.

(139.) A release of all legacies.

(140.) A release of a bond, it being lost.

(141.) A release of a judgment.

(142.) A release of a condition.

(143.) A release of a covenant contained in an indenture of lease.

(144.) A release in extinguishment of a power.

(145.) A release from a lessor to a lessee (upon his surrendering his lease), from the covenants therein.

(146.) A general release of dower.

(147.) A release of dower to the heir.

(148.) A release of dower, in consideration of an annuity given by

will.

(149.) A release of dower, where the present husband of the widow

joins in the deed.

(150.) A release of a trust.

(151.) A release of right to lands.

(152.) A release between two traders, on settling accounts.

(133.)

A RECEIPT IN SIMPLEST FORM.

(Date). This day I have received from dollars.

(Signature.)

(134.)

A SIMPLE RECEIPT, STATING ON WHAT ACCOUNT THE MONEY IS RECEIVED.

(Date). This day I have received from

dollars, on account of

(Signature.)

(135.)

A RECEIPT, STATING THE PURPOSE FOR WHICH THE MONEY OR ARTICLES ARE RECEIVED.

(Date.) This day the following (papers, or other articles, enumerating and describing them), were delivered to me by (add, on account of, or in execution of, the promise or bargain, describing it; and, if they are delivered for any particular purpose, describe that), and I hereby acknowledge the receipt of them.

(Signature.)

Every receipt is open to evidence, not only to explain it, but to contradict it. Herein releases differ from receipts. A release gives up some right or claim which the releasor had against the releasee. It is in the nature of a contract, and therefore cannot be controlled or contradicted by evidence, unless on the ground of fraud. But if its words are ambiguous, or may have either of two or more meanings, evidence is receivable to determine the meaning.

Like every other contract, it requires a consideration, and is of no force without one. But here comes in the rule of law as to a seal. The general rule is, as has been stated before, a seal implies, or is the same as, the assertion of a consideration; and therefore it is always customary to put a seal to a release. But a release, even with a seal, if it can be shown to have been given without any consideration whatever, can be set aside. It is always best to state in the release itself that it was given for a consideration, and what the consideration is. A release properly drawn, and duly signed and sealed, is a complete defence to an action grounded on any of the debts or claims released.

The following forms are for releases of various kinds:

(136.)

A GENERAL RELEASE.

of

KNOW ALL MEN BY THESE PRESENTS, That I (the name of the releasor), for and in consideration of the sum of to me have remised, released, and for ever

paid by

of