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APPROPRIATION OF PAYMENT.
Ir one who owes several debts to his creditor makes to him 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 pay. ment, 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 inten. tion 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.
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:
(45.) (Date) Received from dollars.
(46.) (Date) This day I have received from . dollars, on account of
(47.) (Date) This day the following (papers, or other articles, enumerating and describing them) were delivered to me by
(add, on accouni of, or in execution of, the promise or bargain, describing it; and, if they arı delivered for any particular purpose, describe that), and I hereby acknowl. edge the receipt of them.
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 :
A General Release. Know all Men by these Presents, That I, (the name of the releaser) of
for and in consideration of the sum of to me paid by
of have remised, released, and forever discharged, and by these presents do, for me, my heirs, executors, and administrators, remise, release, and forever 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, I hereunto set my hand and seal this day of 19
(49.) A Mutual General Release by Indenture. This Indonture, Made between
witnesseth, that the said doth, by these presents remise, release, and forever quit claim, unto the said
all and all manner of actions, (as before ); and this indenture further witnesseth, that the said
by these presents, doth remise, release, and forever quit claim, unto the said all and all manner of actions (as before). In Witness Whereof, &c.
(50.) 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
send greeting. Whereas, the said
is indebted to us his 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)
for the use of, and to the intent that the same may be shared and divided amongst us his said creditors, 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 hin and herself, his and her heirs, executors, and copartners, doth by these presents, remise, release, and forever discharge the said
his heirs, executors, and administrators, of and from our said several debts, and all and all manner of action and actions which against the said
each and every of us the said creditors now hath, or which each and every of our heirs, executors, or administrators, respectively, hereafter may, can, or ought to have, claim, or demand for, upon, or by reason of the said several and respective debts to us severally due and owing, or for or by reason of any other matter, cause, or thing whatsoever from the beginning of the world. In Witness Whereof, &c.
A Release of all Legacies. Know all Men by these Presents, That I
widow, have remised, released, and forever quit-claimed
and by these presents do for me
, deceased, and to the heirs, executors, and administrators of the said
, all legacies, gifts, bequests, sum and sums of money and demands whatsoever, bequeathed and given unto me the said
in and by the last will and testament of
deceased, and all manner of actions and suits, sum and sums of money, debts, duties, reckonings, accounts, and demands whatsoever, which I the said
ever had, now have, or that I, my executors or administrators, can or may, at any time or times hereafter, have, challenge, or demand against the said
his executors, administrators, or assigns, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world until the day of the date hereof. In Witness Whereof, etc.
(52.) A Release of a Bond, it being Lost. To all to whom these Presents may come, (name of releaser) sendeth greeting. Whereas
by his bond or obligation, bearing date (recite the bond), as by the said bond or obligation, and the condition thereof may appear: And whereas the sum of mentioned in the said bond, with all the interest for the same, is paid and satisfied unto me the said
in full discharge for the said bond or obligation: And whereas the said bond or obligation is lost, or at present mislaid, so that it cannot be found to be delivered up to the said to be cancelled: Now know ye, that I the said for the consideration aforesaid, have remised, released, and quitclaimed, and by these presents do, for me, my executors and administrators, remise unto the said
his heirs, executors, and administrators, as well the said recited bond or obligation, as all such sums of money as therein are mentioned to be due and payable, unto me the said
my executors, administrators, or assigns; and also all actions, suits, cause and causes of action, accounts, debts, reckonings, sums of money, judgments, executions, and demands whatsoever, which 1, the said
ever had, now have, or that I, my executors, aaministrators, or assigns, or any of us, can or may have, for or against the said
his executors or administrators, for, or by reason of the said recited bond or obligation, or any other matter, cause, or thing whatsoever, concerning the same, from the beginning of the world to the day of the date hereof. In Witness Whereof, I the said
have hereunto ser my hand and seal this
(Signatures.) (Seals.) in Presence of