Gambar halaman
PDF
ePub

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 dubt 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 limita- ' tions, 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 satin fied, 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 delt 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 caie 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 ex. ception 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.

KNOW ALL MEN BY THESE PRESENTs, That I (the name of the releasor), of for and in consideration of the sum of

to me fraid by

have remised, released, and for ever

of

discharged, and by these presents do, for me, my heirs, executors, and administrators, remise, release, and for ever discharge, the said his heirs, executors, and administrators, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, extents, executions, claims, and demands whatsoever, in law and in equity, which against the said

I ever had, now have, or which I, my executors or administrators, hereafter can, shall, or may have, for, upon, or by reason of, any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents. IN WITNESS WHEREOF, &c.

(Signature.) (Seal.)

(137.)

A MUTUAL GENERAL RELEASE BY INDENTURE.

THIS INDENTURE, Made between

of

and of witnesseth, That the said

doth by these presents remise, release, and for ever quitclaim unto thu said

all and all manner of actions (as before); and this indenture further witnesseth, That the said

by these presents, doth remise, release, and for ever quitclaim unto the said

all and all manner of actions (as before). IN WITNESS WHEREOF, &c.

(Signature.) (Seal.)

(138.)

A RELEASE FROM CREDITORS TO A DEBTOR, UNDER A COMPOSITION.

TO ALL PERSONS TO WHOM THESE PRESENTS MAY COME, We who have hereunto set our hands and seals, creditors of

of send greeting. Whereas the said

is indebted to us, bis said creditors, in several sums of money, which he is not able fully to satisfy and discharge, we therefore have agreed, and do hereby agree, to accept of the sum of

in full payment and satisfaction of all the debts owing to us respectively at the date hereof, by and from the said

which is paid by or for the said (the name of the debtor), to (the names of the persons to whom the money is to be paid for the creditors releasing), and assignees by virtue of a commission of bankrupt awarded against the said

for the use of, and to the intent that the same may be shared and divided amongst, us his said creditors, seeking relief under the said commission, in proportion and according to the debts to us severally due and owing. Now, therefore, know ye, that for the consideration aforesaid, each of us, the said creditors who have hereunto set our hands and seals, for him and herself, his and her heirs, executors, and copart

1 The words following in Italic may be omitted, according to circumstances.

« SebelumnyaLanjutkan »