says to him, 'Let C have goods to such an amount, and I will pay you,' and the credit is given to A, in that case C being under no liability, there is nothing to which the promise of A can be collateral; but A being the immediate debtor, it is his original undertaking, and not a promise to answer for the debt of another;" and therefore need not be in writing.

Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another. If an old debt is extinguished by a new promise, this promise is considered as an original one, and not within the requirement of the statute.

If there be an oral promise to pay the debt of another, and also to do some other thing, this last can be enforced at law, if this other thing, and so much of the promise as relates to it, can be severed from the debt of the other and the promise relating to that debt; for although that promise must be in writing, the other may be oral.

SECTION III.

AN AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR. UNDER the fifth clause in the fourth section, it is held that an agreement which may be performed within the year is not affected by the statute, as the words, "that is not to be performed within one year," ," do not apply to an agreement which, when made, was, and by the parties was understood to be, fairly capable of complete execution within a year, without the intervention of extraordinary circumstances,—although in point of fact its execution was extended much beyond the year. So where one agreed orally, for one guinea, to give another a number of guineas on the day of his marriage, it was held that this promise was not within the statute, that is, not one which the statute required to be in writing, because he might be married within a year, and the promisor was therefore bound by it. So where one agreed orally never to go into the staging business in a certain place, as this contract could last only while the promisor lived, and he might die within a year, he was held to be bound by it.

SECTION IV.

CONTRACTS FOR SALE OF GOODS.

UNDER the seventeenth section of the statute it is held in this country that shares in railroad and manufacturing companies, and generally, in all corporations and joint-stock companies, are "goods, wares, or merchandise," within the meaning of the statute, and that an agreement for their purchase and sale must therefore be in writing.

Instead of the £10 specified in the English statute, the sums mentioned in the statutes of the different States are generally from thirty to fifty dollars.

Under the first clause of the section there must not only be a delivery of the goods, but they must be received and accepted by the buyer. As to what is sufficient to constitute such acceptance, the intention of the buyer, the nature of the goods, and the circumstances of the case are all material. If he intends to retain possession of the goods, and manifests his intention by a suitable act, it is an actual acceptance. He has a right to examine the goods and ascertain their quantity and quality before determining whether to accept them or not, and a retention by him for a time sufficient for this examination, and no more, is not an acceptance.

Under the second clause of this section "earnest" is regarded as a part payment of the price. It must have some value, however small, and must be actually given and received, and given and received as "earnest." A part payment, to bring the contract within the statute, must be an actual one, made at the time the contract is entered into; agreement to pay and subsequent payment are not enough.

As to contracts of sale for future delivery, there is some conflict of authority, but the weight of opinion seems to be that where the article is one actually in existence at the time the contract is made, or is one that the vendor usually has for sale, the statute applies; but not where the article is to be specially manufactured for the vendee.

SECTION V.

THE FORM AND SUBJECT MATTER OF THE AGREEMENT.

THE "agreement" must be in writing; but generally, in this country, the writing need not contain or express the consideration, which may be proved otherwise. In several of the States, however, as in Alabama, Minnesota, Nevada and Oregon, the consideration must be expressed; and this is the rule in England, and also in New Hampshire and Georgia except as to guaranties. Nor need the agreement be all on one piece of paper. For it is sufficient if on several pieces, as in several letters, which, however, relate to one and the same business, and may fairly be read together as the statement of one transaction. But it must appear from the papers that they are so connected.

The "signature" may be in any part of the paper,-the beginning, middle, or end, except in those of our States in which the statute has the word "subscribed" instead of "signed;" in which case it should be in the usual place at the bottom. If the name and the agreement be printed, it is sufficient; hence, a printed shop-bill, with the name of the seller, as usual, at the beginning, if delivered to the buyer, is generally sufficient to charge the seller in an action for refusing to deliver the goods.

It may be further remarked, that the operation of the statute has been always limited to such contracts as have not been executed in any substantial part, and therefore remain wholly executory. For if they had been executed substantially in good part, they are binding, although only oral.

In Massachusetts, the Statute of Frauds also provides (3d section) that no action shall be brought to charge any person upon, or by reason of, any representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of any other 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.

CHAPTER XIII.

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, it must be such a bill as is agreed upon, and this must be tendered by the debtor. But the word "bill" does not necessarily mean an "approved bill"; and if this phrase be itself used, it means only a 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 coin, 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 defense to an action for the debt. But the creditor may break down this defense by proving that, subsequently to the tender, he demanded the money of the debtor, and the debtor refused to give it.

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 is payment, although it be dishonored, because it has been good to the creditor, 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