PART III. 211; Rosc. 482; Chit. Con. 716, 717; Ad. TIT. II. CAP. VII. Con. 1044-5; Byles, 9, 10.) 852. Payment through the post or a bank. Payment by bill or note. Fayment by cheque. A conditional tender (as, for instance, a tender of a sum to be accepted "in full of all demands," or as "the balance due") is not a legal tender, that is, not a tender which the creditor is bound to accept. Nor is the tender of a sum exceeding the debt, and requiring change. (Sm. Merc. Law, 540; Trower, 211-212; Rosc. 482; Ad. Con. 1045-6.) 853. Sending money in a letter by post, or paying it into a bank, by request of the creditor, is equivalent to payment directly to him. (Ad. Con. 981.) 854. When a creditor accepts a bill or note in payment, he thereby virtually agrees to give the debtor credit for the time which it has to run, except in the case of rent or specialty debts, or unless the debtor knew the bill or note to be of no value. In general, it is no satisfaction of the debt or demand, until it is paid, unless the creditor agrees to accept it as cash, or has been guilty of laches in enforcing payment. (Sm. Merc. Law, 451-2; Byles, 218, 235-9; Rosc. 388, 472-3; Chit. Con. 679, 680; Ad. Con. 928-9, 984.) 855. If a creditor takes a cheque in payment of his debt, and it is dishonoured, or the banker TIT. II. CAP. VII. fails, the creditor's remedies for the recovery PART III. of the debt are unaffected, if he has presented it in due time. (Byles, 23; see supra, par. 809, 810.) 856. one execu or joint Payment to one of two or more executors, Payment to trustees, or joint creditors, is sufficient. tor, trustee, (Chit. Con. 658; Ad. Con. 983-4, 1046.) 857. creditor. The taking from the debtor himself, and Satisfaction not from a third person with the debtor's assent, a smaller sum of money in lieu and full discharge of a greater ascertained sum, does not amount to a legal satisfaction, unless the time, place, or manner of payment of the less amount may by possibility be more advantageous to the creditor, or there is some other consideration to save the transaction from being a nudum pactum, or unless the acknowledgment of satisfaction is by deed. So that although a man may give, in satisfaction of a debt of 100l., a horse worth 5l., yet if he gives 5l., it is not a satisfaction. (3 Ste. Com. 353; Broom Com. 422-3; Selw. 135-6; Chit. Con. 659, 660; 2 Sm. L. C. 290, 291, 295, 296-8; Rosc. 443; Ad. Con. 974-980; Byles, 215, 216.) 858. tion of The payment of money will sometimes be Presump presumed, from lapse of time and other payment. circumstances, independently of the Statute of Limitations. (Chit. Con. 660.) 859. PART III. TIT. II. Proof of payment or Although a receipt was given, the debtor CAP. VII. may prove payment by oral testimony; or the creditor may prove that in reality no non-pay- payment was made. (Trower, 212; Chit. Con. 669.) 860. inent. Receipts. Connected accounts. Appropriation of payments. Receipts for 21. and upwards now require a penny stamp, and no more. The stamp cannot be added after they have been written, except within fourteen days on payment of the duty and 5l., or one calendar month on payment of the duty and 10. (Sm. Merc. Law, 552; Trower, 212; Chit. Con. 670; 23 Geo. III. c. 49, s. 14; 55 Geo. III. c. 55, s. 11; 16 & 17 Vict. c. 59.) 861. The debtor is bound to provide the paper and writing materials, and the stamp, if necessary, for the receipt. (Ad. Con. 1046.) But the creditor is bound to pay him for the stamp. 862. In the case of connected accounts of debts and credits, the balance only is recoverable, whether at Law or in Equity. (Sm. Eq. Manual, 13th ed. par. 660.) 863. Where a creditor has two debts due to him from the same debtor on distinct accounts, the general law as to the appropriation of payments made by the debtor is this: the debtor is entitled to apply the payments, at the time of making them, in such manner as he thinks fit. In default of appropriation by the debtor, whether evidenced (as it may be) by his previous conduct, or subsequent declarations, or by other circumstances, the creditor is entitled to determine the application of the sums paid. And if neither does so, the law implies an appropriation of such payments to the earlier debt. And where separate matters are treated as one entire account by all parties, the payment is deemed to be made in discharge of the earlier items. of debt. (Merriman v. Ward, 1 John. & Hem. 376; Story's Eq. Jur. § 459a, 459g; Trower, 212; Rosc. 471-2; Tudor Ca. on M. L. 17, 20, 23-4; Chit. Con. 665-8; Ad. Con. 985, 987; Hooper v. Keay, L. R. 1 Q. B. D. 178.) 864. PART III. TIT. II. creditors, composition If a debtor induces a creditor to execute Frauds on a deed of composition, by a gift, or by mis- parties to representation or concealment of the state of deed. his affairs, the deed is void. And any secret agreement for securing to one of the creditors who are parties to a composition deed, any advantage not enjoyed by the rest, is fraudulent and void. (Ad. Con. 908-9; Atkinson v. Denby, 7 Hurl. & Norm. 934; Dauglish v. Tennent, L. R. 2 Q. B. 49.) 865. A guaranty is a promise to be responsible Guaranty. for the payment of a debt or the performance TIT. II. PART III. of a duty, in case another person, who is, or CAP. VII. is supposed to be, primarily liable to such payment or performance, fails to pay or perform the same. (Wharton; Sm. Merc. Law, 463; 2 Ste. Com. 103; Rosc. 329; Chit. Con. 456; Ad. Con. 564-5; Mountstephen v. Lakeman, L. R. 5 Q. B. 613; 7 Q. B. (Ex. Ch.) 196; 7 H. L. 17.) 866. One person inducing a to supply goods to another person. Care must be taken not to treat as a guaranty (which is an actual promise) a mere proposal or offer of a guaranty, acceptance of which requires to be notified to the maker, before it constitutes a binding contract. (Ad. Con. 7th ed. 853.) 867. It is not necessary that the person so primarily liable should have requested the person giving the guaranty to become answerable, or should be in any manner a party to it. (Chit. Con. 463; Heffield v. Meadows, L. R. 4 C. P. 595, 599.) 868. Where A. has induced a tradesman to tradesman deliver goods to B., the question frequently arises, whether the goods were actually sold to A., though delivered to B., or whether they were sold to B., and A. only became surety for the price. And so where A. has induced a person to do work for B., the question often occurs, whether the work is to be debited to A. though done for B., or |